Safe Harbors to Troubled Waters? Heightened Antitrust Scrutiny of Labor Markets

Adam Di Vincenzo
Daniel J. Rosenthal
Melanie Westover Yanez
Adam Di Vincenzo | Milbank LLP
Daniel J. Rosenthal | Milbank LLP
Melanie Westover Yanez | Milbank LLP
On-Demand: April 26, 2023
Safe Harbors to Troubled Waters? Heightened Antitrust Scrutiny of Labor Markets

$195.00 1.5 hour CLE

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Program Summary

U.S. antitrust enforcers have stepped up efforts to expand their reach into labor and employment. The Biden Administration has instructed the US antitrust agencies to review and regulate business conduct and transactions that harm competition for working people. This has led to a more adverse and skeptical approach to “no poach” and “no hire” agreements, proposed FTC regulations that would ban most employee non-compete agreements and a heightened interest in policing potentially improper information sharing and benchmarking activities related to employee compensation (salaries and bonus) and benefits.

Key topics to be discussed:

  • What practices involving employees might be subject to antitrust scrutiny?
  • No-Poach and Non-Solicit Agreements. Is there still a place for them?
  • Key considerations from the FTC’s recent proposal to prohibit non-compete agreements
  • Antitrust compliance protocols and guardrails should be implemented for information exchanges and benchmarking

Date: April 26, 2023

Closed-captioning available

Speakers

Adam Di Vincenzo_Milbank LLP_myLawCLEAdam Di Vincenzo | Milbank LLP

Adam Di Vincenzo is a partner in the Washington, DC office of Milbank and a member of the Litigation & Arbitration Group.

Primary Focus & Experience

Mr. Di Vincenzo’s antitrust and competition law practice focuses on representing clients in government reviews of mergers and acquisitions, antitrust investigations and litigation.

He has served as lead antitrust counsel for Fortune 500 public companies, and private equity sponsors and their portfolio companies, in dozens of antitrust matters before enforcement authorities in the United States (including the DOJ and FTC) and internationally. He has represented and counseled clients in some of the most significant antitrust M&A matters in recent history, including AT&T’s acquisition of Time Warner (where the parties defeated a DOJ challenge after a preliminary injunction trial), Williams’ merger with Energy Transfer, and Roche’s acquisition of Spark Therapeutics. His other notable representations include Berkshire Hathaway Energy, Walmart, Schlumberger, Kimberly-Clark, Southern Company, United Therapeutics and Intel.

Mr. Di Vincenzo also has extensive experience defending clients in antitrust litigation, and counsels clients on regulatory and compliance issues arising under the Sherman Act, the Clayton Act, the Robinson-Patman Act, and the Hart-Scott-Rodino (HSR) Act. His clients encompass a range of industries, including energy, defense, tech, advertising, insurance, retail, gaming, aviation, chemicals, consulting, entertainment, pharmaceuticals, medical devices, manufacturing, transportation, media, telecommunications, software, semiconductors, agriculture, wood products and consumer products.

Recognition & Accomplishments

Mr. Di Vincenzo is recognized as a leading antitrust lawyer by publications such as Global Competition Review, Legal 500, Benchmark Litigation, Who’s Who Legal, and Law360. In 2022, he was recognized in Lawdragon’s 500 Leading Litigators in America and as a Future Star by Benchmark Litigation. He serves as a Senior Editor of the American Bar Association’s Antitrust Law Journal and as principal editor of Antitrust Laws & Trade Regulation: Desk Edition (published by LexisNexis). He has published several articles and symposia exploring topics such as merger analysis, risk allocation in M&A agreements, and intellectual property issues.

Prior to joining Milbank, Mr. Di Vincenzo was a partner in the DC office of Gibson Dunn. He received his B.A. from the University of Richmond and his J.D. and MPP from Duke University.

 

Daniel J. Rosenthal_Milbank LLP_myLawCLEDaniel J. Rosenthal | Milbank LLP

Daniel J. Rosenthal is a special counsel in Milbank’s Washington, DC office and a member of the firm’s Litigation & Arbitration Group.

Primary Focus & Experience

Mr. Rosenthal is widely considered a “go-to” practitioner for government merger and non-merger investigations, as well as counseling on antitrust issues, with a proven track record advising clients on complex cross-border transactions with multiple merger clearance requirements. He has broad experience handling complex antitrust issues in a variety of industries, including healthcare, pharmaceuticals, biotechnology, manufacturing, petroleum, solid waste, transportation, automobile components, semiconductors, software, hardware, chemicals, energy, entertainment, and retail sales.

Mr. Rosenthal has successfully defended non-merger investigations, including investigations of violations of Section 8 of the Clayton Act, and has advocated for government intervention on behalf of parties adversely impacted by proposed mergers. Daniel advises clients on issues relating to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), as well as international merger notification requirements. Clients turn to Mr. Rosenthal on a variety of antitrust risk management issues relating to business initiatives such as joint ventures, pricing and distribution strategies, information and data-sharing, and trade association and industry-wide collaborative efforts.

Recognition & Accomplishments

In 2022, The Legal 500 USA named Mr. Rosenthal a Recommended Lawyer for Antitrust. He has also authored and co-authored several articles and publications, including the US chapter of Merger Control, a comparative guide published by The Legal 500 (2018, 2019, 2020, 2021).

Prior to joining Milbank, Mr. Rosenthal was an associate at White & Case, where he helped develop the Global Antitrust Merger StatPak, a first-of-its-kind resource providing information on merger control filing activity by competition authorities around the world. Mr. Rosenthal received his J.D. from University of Virginia and his B.A. from Emory University.

 

Melanie Westover Yanez_Milbank LLP_myLawCLEMelanie Westover Yanez | Milbank LLP

Melanie Westover Yanez is special counsel in the Washington, DC office and a member of the firm’s Litigation & Arbitration Group.

Primary Focus & Experience

Ms. Yanez represents clients in federal and state courts in complex commercial litigation and financial restructuring litigation. Ms. Yanez has experience defending clients in individual and class action cases involving antitrust, securities, and commodities issues. She also has experience representing creditors’ committees, litigation trustees, equity holders, and other entities in financial restructuring matters, particularly regarding fraudulent and preferential transfer claims and breach of fiduciary cases.

Ms. Yanez also has represented clients in sensitive investigations regarding a variety of matters including antitrust, market manipulation, and rules violations. She has advised clients on internal investigations as well as regulatory and governmental investigations involving, among other US and foreign authorities, the US Department of Justice, the US Commodity Futures Trading Commission, the US Securities and Exchange Commission, and the US Internal Revenue Service. Ms. Yanez also has represented self-regulatory organizations in disciplinary matters.

Ms. Yanez has been a speaker at Harvard Law School programs. Ms. Yanez also has been a presenter in numerous training programs for incoming and developing Milbank associates.

Recognition & Accomplishments

Ms. Yanez received her B.A., magna cum laude, from the University of Maryland and her J.D. from Harvard Law School.

Agenda

I. What practices involving employees might be subject to antitrust scrutiny? | 12:00pm – 12:20pm

II. No-Poach and Non-Solicit Agreements. Is there still a place for them? | 12:20pm – 12:40pm

III. Key considerations from the FTC’s recent proposal to prohibit non-compete agreements | 12:40pm – 1:00pm

Break | 1:00pm – 1:10pm

IV. Antitrust compliance protocols and guardrails should be implemented for information exchanges and benchmarking | 1:10pm – 1:40pm