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Although much attention recently has been focused upon debates
in Congress, potential legislative changes to U.S. antitrust law
are not limited to
proposals at the federal level. Many states are considering
changes to their own antitrust laws, which usually can be enforced
by state attorneys general and private plaintiffs. Importantly, New
York legislators have introduced two bills that propose sweeping
changes to the State s antitrust law, the Donnelly Act,
building on measures introduced
in New York s last legislative session.
These proposals, if enacted, would make New York s single
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As expected, the hearings on Judge Merrick Garland s
nomination to serve as Attorney General provided more insights
into Senators views on antitrust enforcement than Judge
Garland s. Nevertheless, there were certain exchanges that give
some hints about what lies ahead in this arena.
Judge Garland s Background
Judge Garland who practiced antitrust law at Arnold &
Porter early in his career, has written on the subject, and even
taught antitrust at Harvard will bring significantly more
antitrust experience and expertise to the role of AG than any of
CONTRACT - construction - exclusive licence granted to plaintiffs
to use defendant s registered trade marks on prescribed cheese
and butter products - whether defendant prohibited from using the
trade marks on any products - whether prohibition on
defendant s use of trade marks limited to products as defined
in agreements - prohibition on defendant s use of trade marks
limited to products as defined.
RECTIFICATION - unilateral and common mistake - claim for
rectification of agreements to insert the words on or in
relation to any product or otherwise whatsoever - whether at
the time of executing agreements plaintiffs misapprehended that the
LEGAL FRAMEWORK
Antitrust law
1 What are the legal sources that set out the antitrust
law applicable to vertical restraints?
Rules applicable to vertical restraints are set out under
article L420-1 et seq of the French Commercial Code. EU antitrust
law (ie, article 101 of the Treaty on the Functioning of the
European Union) may also apply to vertical restraints if they
restrict competition within the common market and may affect trade
between the EU member states
Under French law, article L420-1 of the French Commercial Code
prohibits concerted practices, contracts, explicit or tacit
agreements or coalitions between independent companies having as
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With a new presidential administration promising vigorous
antitrust enforcement, and a new Democratic majority in Congress
seeking to make drastic changes to U.S. antitrust laws, the
technology and healthcare industries have found themselves the main
targets of increased antitrust scrutiny. Though companies
engaging in government contracting, particularly in the aerospace
and defense industries, already have had to deal with a range of
antitrust issues - for example, the Department of Justice,
Antitrust Division (the DOJ ) launched the Procurement
Collusion Strike Force ( PCSF ) in 2019 (discussed in