Insights

Washington – January 11, 2023: Crowell & Moring has published Litigation Forecast 2023: What Corporate Counsel Need to Know for the Coming Year. The 11th-annual Litigation Forecast focuses on trends in litigation that are playing out in specific jurisdictions around the globe. 

Washington — January 12, 2022: Crowell & Moring has published Litigation Forecast 2022: What Corporate Counsel Need to Know for the Coming Year. The tenth-annual Litigation Forecast focuses on the intersection of technology, litigation, and intellectual property, including significant changes to the Patent Trial and Appeal Board process, the impact of Google v. Oracle on copyright, new developments in the biopharma space, shifting FTC enforcement strategies, and more. The Litigation Forecast provides forward-looking insights from leading Crowell & Moring lawyers to help legal departments anticipate and respond to challenges that might arise in the year ahead.

Washington – May 5, 2021: Crowell & Moring is pleased to announce that Lisa Kimmel has been shortlisted for Concurrences and George Washington University’s “2021 Antitrust Writing Awards” for her article, “The Patent Market Power Fallacy.” The article originally appeared in The Licensing Journal. The award honors the best antitrust articles published in the past year, and will be announced during a virtual awards ceremony on Wednesday, June 30th. Kimmel is a finalist for the “best academic article” in the intellectual property category.

On January 31, 2023, U.S. District Court Judge Edward Davila (N.D.Cal.) denied the request of the Federal Trade Commission (FTC) for a preliminary injunction to halt Meta’s acquisition of virtual reality (VR) fitness app developer Within.  Because Meta does not compete in the VR dedicated fitness app business, the litigation was a rare example of how a court assesses the “actual” and “perceived” potential competition theories of harm.  Although the court upheld the FTC’s market definition, claims of a highly concentrated market, and the validity of these potential competition theories, the court ultimately held that the FTC failed to demonstrate it was “reasonably probable” Meta would have entered the VR dedicated fitness app business without the Within acquisition, or that VR dedicated fitness app developers’ perception of Meta as a potential entrant had a direct effect on tempering anticompetitive conduct in that market. 

On January 11, 2022, District Judge James Boasberg (D.D.C) largely denied Facebook’smotion to dismiss an amended complaint filed by the FTC. The FTC sued Facebook in December 2020 under Section 13(b) of the FTC Act, which authorizes the FTC to seek an injunction against an entity that “is violating” or “is about to violate” any provision of law enforced by the Federal Trade Commission. The FTC alleges that Facebook has acted unlawfully to maintain its monopoly in an alleged Personal Social Networking market in violation of Section 2 of the Sherman Act, which is alleged to constitute an unfair method of competition under Section 5 of the FTC Act. In June 2021, Judge Boasberg granted Facebook’s initial motion to dismiss, but allowed the FTC to file an amended complaint, and the FTC did so in August 2021. 

House Antitrust Subcommittee leaders David Cicilline and Ken Buck unveiled last Friday five antitrust reform bills that would target the largest technology platforms, as well as the need to increase federal enforcement agency budgets.  The effort follows the Subcommittee’s extensive Fall 2020 report and earlier proposed legislation by Senator Amy Klobuchar that would expand the federal antitrust laws’ coverage of exclusionary conduct and unlawful mergers. 

As federal, state, and international antitrust scrutiny of the tech industry escalates, the question is no longer whether antitrust enforcement should intensify, but how. Please save the date for the inaugural Antitrust & Tech Conference co-hosted by the George Washington University Competition Law Center and Crowell & Moring, which will focus on how antitrust enforcement involving mergers of technology companies will and should be carried out. 

Can current antitrust enforcement tools address the increasing prominence of digital markets? How might proposed antitrust policy reforms affect digital markets and the enforcement agencies?