Antitrust Lawyer Blog Commentary on Current Developments

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Employers and Human Resource personnel need a crash course in the antitrust laws and an understanding of the antitrust risks of entering into no-poach agreements.

What is a no-poach agreement? 

A no-poach agreement is essentially an agreement between two companies not to compete for each other’s employees, such as by not soliciting or hiring them. No-poach agreements, or agreements not to approach other companies’ employees to hire, are generally considered illegal under the antitrust laws.  When companies make agreements not to compete for each other’s employees, they are restraining commerce because they are not allowing working people to freely change jobs to potentially make more money or move to another location if they wish to. It is illegal for companies or other entities to make these agreements, but it happens more often than you would think – just like the case with Seaman v. Duke University.

On August 2, 2019, the FTC authorized an enforcement action to challenge Evonik Industries AG’s (“Evonik”) proposed $625 million acquisition of PeroxyChem Holding Company (“PeroxyChem”).


The FTC is alleging the merger of the chemical companies would substantially reduce competition in the Pacific Northwest and the Southern and Central United States for the production and sale of hydrogen peroxide, a commodity chemical used for oxidation, disinfection, and bleaching.

On June 20, 2019 the Office of the United States Trade Representative (“USTR”) announced an exclusion process for tariffs imposed on September 2018 (“List 3”) pursuant to the U.S. Section 301 action against China. This announcement was followed by a notice published in the Federal Register. Through this exclusion process, parties will be able to request that USTR exclude specific products from the twenty-five percent tariff currently scheduled to apply to List 3 products under the Harmonized Schedule. While exclusion rounds for Lists 1 and 2 are closed, the exclusion process for List 3 products will begin on June 30, 2019 and will be administered through an electronic portal available at (portal will open on June 30, 2019). Copies of the exclusion forms are currently available online so interested parties can begin reviewing the necessary forms.

Background on Section 301 Tariffs

A Section 301 investigation, conducted by USTR, revealed that numerous unreasonable or discriminatory Chinese laws and practices relating to technology transfer, intellectual property, and innovation are adversely affecting U.S. businesses. The investigation found that:

On May 30, 2019 President Trump announced via Twitter that the United States (U.S.) will impose tariffs on Mexican imports to prompt Mexico to significantly reduce immigration to the U.S.  President Trump will impose these additional tariffs in the context of rapidly increasing immigration from Mexico to the U.S. over the past months.

In declaring these new tariffs, President Trump relied on powers that Congress delegated to the president under the International Emergency Economic Powers Act (IEEPA) of 1977.   Congress enacted this statute to provide the president with the necessary authority to restrict transactions between U.S. persons and foreign entities located outside the U.S. that pose threats to U.S. national security interests.  Therefore, the president typically invokes IEEPA in sanctions matters (e.g. the Iranian, Syrian, and North Korean sanctions programs) and export control matters (e.g. regulations regarding transferring control of sensitive technology and information from a U.S. person to a foreign person).

The absence of language in IEEPA referring to “tariffs” or “immigration” combined with the stark contrast between this current invocation and past invocations of IEEPA have lead some scholars to believe that the use of this statute for imposing additional tariffs on Mexican imports may be illegal.  Members of President Trump’s own political party have expressed similar beliefs. For instance, Chuck Grassley, a Republican senator on the U.S. Finance Committee, has publically supported this view by saying that President Trump has exceeded his authority.

President Trump announced an agreement to remove the tariffs imposed on steel and aluminum imports from Canada and Mexico as part of the renegotiated North American Free Trade Agreement (“NAFTA”).  The current tariffs included a 25 percent rate on steel imports and 10 percent on aluminum imports. In response to the United States’ steel and aluminum tariffs, Mexico and Canada launched their own retaliatory tariffs on a wide range of products, including pork, whiskey, and orange juice.

The Trump Administration imposed the tariffs under Section 232 of the Trade Expansion Act of 1962, which allows the President to impose restrictions on certain imports if the Department of Commerce finds that such imports “threaten or impair national security.” Section 232 gives the Executive wide latitude to make such determinations, and such decisions need not receive Congressional approval.  Indeed, such broad authority caused Congress to debate the merits of Section 232 determinations, and a recent bill was introduced in the Senate to remove the national security determinations from the Department of Commerce to the Department of Defense. Such efforts have stalled.

According to a statement from the United States Trade Representative, the countries will focus on monitoring and enforcement mechanisms to prevent surges of imports of steel and aluminum.  A joint statement from the US and Canada indicated that both countries will strive to prevent transshipment from third countries, such as China, and otherwise prevent the importation of products that are unfairly subsidized or sold at dumped prices.

Last week, the Trump Administration raised tariffs to 25% on $200 billion worth of goods that previously were subject to 10% tariffs.  The increased rate in tariffs were brought on as a result of accusations that the Chinese delegation to the trade negotiations back-tracked on previous agreements, and the increase was meant to ratchet up pressure on China to make a deal.

This week, China retaliated by raising tariffs on $60 billion of U.S. goods.  The goods targeted already were subject to some tariffs.  Now 5,140 tariff lines will be subject to an increased rate, including 2,493 cotton, machinery and grain products that are going to be subject to a 25% tariff from a previous 10% tariff rate; and 1,078 products, including aircraft parts, optical instruments and certain types of furniture that will be subject to a 20% tariff rate from a previous 10% tariff rate; and 974 products, including corn flour and wine, will have a 10% tariff rate – up from 5%.

In response to the retaliatory tariffs from China, President Trump tweeted: “. . . China should not retaliate-will only get worse!”  The proposed rates will take effect on June 1.

The last few weeks brought a flurry of developments regarding international trade.  Two petitions recently were filed with the US International Trade Commission (“ITC”).

On April 30th, Hirsh Industries filed an antidumping (“AD”) and countervailing duty (“CVD”) petition on imports of certain vertical metal file cabinets from China.  The petition covers metal filing cabinets containing extendable file storage elements having a width of 25 inches or less and having a height greater than its width.  The petition alleges dumping margins of 120.48 percent and 196.79 percent. The Department of Commerce will decide whether to initiate its investigation on May 20, 2019.

On May 8, Cambria Company LLC filed AD/CVD petitions on imports of certain quartz surface products from India and the Republic of Turkey.  The scope of the investigation is fairly broad, and includes quartz surface products such as slabs, including tabletops, countertops, bar tops, vanity tops, tabletops, tiles, etc. The petitioner alleges a 344.11 percent dumping margin against India, and an 89.38 percent dumping margin against the Republic of Turkey.  The Department of Commerce will decide whether to initiate its investigation on May 28, 2019.

When USTR announced tariffs on imports from China on July 6, 2018, it also announced the procedures and deadlines for seeking exclusions from such duties. Late last month, USTR announced that it would grant exclusions from tariffs for a second set of Chinese imports (“List 2”).  The second round of exclusions cover about 87 separate exclusion requests.

All persons could submit requests for exclusion of a particular product, why the exclusion was sought, along with other information such as the quantity and value of the Chinese-origin product.  The USTR then weighed several factors in determining whether to grant the exclusions, including: whether the product was only available in China, whether severe economic harm would result from the duties, and whether the products are important to Chinese industry.

The tariff exclusions from List 2 included about 87 exclusion requests, spanning three ten-digit HTS categories and thirty other product categories.  The exclusions will be dated retroactively to the date when USTR announced the tariffs, July 6, 2018.  Fortunately, any importer can take advantage of the relevant exclusion even if it was not the one that applied to the exclusion.

A lawsuit commenced by the American Institute for International Steel (“AIIS”) regarding the constitutionality of Section 232 before the Court of International Trade (“CIT”) has been decided.  A three-judge panel decided that Section 232 was not unconstitutional.

The plaintiffs argued that Section 232 of the Trade Expansion Act of 1962, as amended, did not properly delegate authority to the Executive Branch because there is no “intelligible principle” under which Section 232 authorizes presidential action.

CIT determined that Section 232 did, in fact, meet the “intelligible principle” standard to uphold Section 232’s constitutionality.  In reaching its decision, the CIT relied on a 1976 case, Fed. Energy Admin. v. Algonquin SNG Inc., 426 U.S. 548 (1976), where the Supreme Court upheld a similar challenge against Section 232, finding that Section 232 “establishes clear preconditions to Presidential action. . . .”

The rising prices of existing and new brand prescription drugs could have serious consequences for tax payers and the 44 million seniors who rely on Medicare.  In order to rein in those costs, it’s vital for the Administration to encourage the use of generic drugs and biosimilars.

While Congress has been grabbing the headlines by holding numerous hearings and introducing various legislative proposals aimed at lowering drug prices, the Trump Administration has introduced some consumer-friendly changes to Medicare that should change the way drugs are priced for seniors and encourage the use of generics and biosimilars.  First, the Centers for Medicare & Medicaid Services (“CMS”) proposes to change how insurance plans and PBMs conduct drug utilization management and structure drug formularies.  Second, the U.S. Department of Health and Human Services (“HHS”) proposes to eliminate the rebates that pharmacy benefit managers (“PBMs”) receive from drug manufacturers and to encourage that any rebates go directly to seniors at the point of sale.

These significant reforms are necessary as the stakes are high.  Since 2006, Medicare Part D spending has more than doubled to roughly $100 billion per year in 2017, and it is expected to climb as a growing and aging population of baby boomers becomes Medicare eligible.  Today, despite making up a modest proportion of Part D prescriptions, brand drugs account for some 84% of total Part D spending.  Generics, meanwhile, which make up most of the Part D prescriptions, account for only 16% of the total spending and saved the Part D program approximately $82 billion in 2017.