The 4th Circuit’s decision in
Steves and Sons Inc. v. JELD-WEN Inc.
1 affirmed a district court’s order compelling an acquirer to divest the business of a competitor, which the court held had been acquired in violation of Section 7 of the Clayton Act.
2 The court described the case as the first instance in which a private party successfully compelled divestiture of a completed acquisition. Government antitrust enforcers commonly obtain divestiture orders in Section 7 cases. Private parties have previously succeeded in enjoining mergers before closing. Moreover, in
California v. American Stores Co.,
3 the Supreme Court declared that private parties could obtain divestiture orders. However, private plaintiffs seeking divestitures have customarily been foreclosed by equitable defenses, such as (i) laches because of delays in initiating suit, (ii) the availability of damages or less-drastic equitable relief, or (iii) the greater damage divestiture would impose on the defendant
Tuesday, January 26, 2021
More than four years after first announcing its intent to criminally prosecute employers and individuals who enter into naked wage-fixing or no-poaching agreements with other employers,
1 the Department of Justice Antitrust Division (Antitrust Division) recently brought its first-ever criminal charges in two different cases for alleged anticompetitive conduct in labor markets. With these two criminal actions, it is clear that DOJ’s public promises to prosecute anticompetitive conduct affecting U.S. labor markets were not just empty threats. Such charges highlight the criminal risks now associated with agreements between labor market competitors related to hiring, wages, and other terms of employment. Below we: