Stephen Loertscher

-Counsel for Defendant in In re: Concrete and Cement Additives Antitrust Litigation in the Southern District of New York alleging price-fixing claims. -Counsel for a confidential client in connection with a DOJ criminal antitrust investigation involving alleged price fixing. -Represents a global fashion company in response to a third-party subpoena issued by a state attorney general in connection with an investigation into alleged monopolistic practices in the fashion retail sector. -Drafted amicus briefs in high stakes technology litigations including DOJ v. Google and Epic v. Apple on behalf of ACT | The App Association, a global trade association for small and medium-sized technology companies. -Advised a multinational consumer goods company on global antitrust risk assessment and compliance protocols across North America, EMEA, and LATAM jurisdictions. -Represented a leading quick service restaurant in an internal investigation into potential antitrust risks in human resources practices, including no-poach concerns.

On January 16, 2025, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) replaced the 2016 Antitrust Guidance for Human Resource Professionals. The new guidelines now titled, Antitrust Guidelines for Business Activities Affecting Workers1, reaffirm the major points of the 2016 guidelines. Wage-fixing and no poach agreements remain illegal and sharing wage information may violate the antitrust laws. However, the new guidelines identify a slew of other agreements and practices that can violate antitrust laws, including franchisee agreements with employment restraints, non-compete clauses, overly broad non-disclosure agreements (NDAs), and other employment restraints. The new guidelines also make clear that they apply to agreements affecting independent contractors including gig workers. The inclusion of independent contractors aligns with the FTC's recent policy statement expanding the antitrust exemption for unions and collective bargaining to independent workers and gig workers.

On January 14, 2025, the Department of Justice (DOJ), Antitrust Division and Department of Labor, Occupational Safety and Health Administration (OSHA) issued a Joint Statement1, asserting that non-disclosure agreements (NDAs) undermine whistleblower protection laws, including the Criminal Antitrust Anti-Retaliation Act (CAARA), when they deter or prevent an employee from coming forward. The Antitrust Division noted they are focused on allowing individuals to report antitrust violations without the fear of retaliation. The Joint Statement also warns against using NDAs as an improper shield to obstruct an investigation, which may result in separate federal criminal violations for companies.

On December 11, 2024, the US Department of Justice ("DOJ") and the Federal Trade Commission ("FTC") announced the withdrawal of the 2000 Antitrust Guidelines for Collaborations Among Competitors. These guidelines outlined the agencies' views on how competitor collaborations should be analyzed under the antitrust laws and provided "safety zones" for certain types of collaborations that the agencies stated would not be subject to challenge. The FTC vote to withdraw the guidelines was 3-2, with the two Republican commissioners writing dissenting statements criticizing the FTC's Democratic leadership for the timing of its decision—noting the upcoming change of administration and the lack of action for the preceding ~four years. As stated by Commissioner Ferguson, who President-elect Donald Trump announced as his selection to be the new FTC Chair, "the time for the Biden-Harris Commission to conduct such guidance review is over. Last month, the American people elected a new President. Now is the time to facilitate an orderly transition."

On November 12, 2024, the US Department of Justice Antitrust Division updated its Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (ECCP).1 The additions include guidance such as using “managers at all levels” to “set the tone from the middle” by “demonstrating to employees the importance of compliance,” establishing policies that account for the use of “ephemeral messaging or non-company methods of communication,” applying “data analytics tools in . . . compliance and monitoring,” and involving compliance personnel in “the deployment of AI and other technologies to assess the risks they may pose.” Additionally, the ECCP now addresses its application to civil investigations. The Division’s updates reiterate the necessity of having a robust compliance policy, which, if properly designed, should prevent and detect potential misconduct under the antitrust laws. Companies should work with counsel to review their current compliance policies and make necessary updates.

The U.S. Supreme Court has denied appeals from both parties from the December 1, 2023, decision of the U.S. Court of Appeals for the Fourth Circuit reversing DOJ's criminal conviction of a former executive of an aluminum products manufacturer for failure to state a per se antitrust offense under the Sherman Act. The Fourth Circuit held that the trial court erred in applying the per se rule without considering that the alleged scheme took place within the context of a "dual distribution" relationship among competing bidders, who also maintained a supplier relationship. The Fourth Circuit denied DOJ's petition for an en banc rehearing. DOJ then sought Supreme Court review of the Fourth Circuit's decision. Defendants also filed a conditional cross petition to the Supreme Court for review of the constitutionality of the per se rule asking the Supreme Court to hold it altogether unconstitutional. The Supreme Court denied the requests.1 As a result, the Fourth Circuit's decision remains in effect, and it will constrain the DOJ's approach in cases involving dual distribution in the future.