Recent lawsuits, such as Microsoft v. MacAfee, eBay v. Brinks and Zynga v. Playdom, have highlighted the need to develop a case-by-case analysis of each defendant’s potential liability and defenses. Antitrust law is heavily predicated on the idea that an enterprise’s competitive position can be diminished by exercising control over its products or services. Aided by this analysis, courts frequently impose broad exclusions to protect competitively sensitive conduct. But unchecked exclusion may chill protected speech, limit economic opportunity, or even result in significant litigation and response costs.
In a recent article, “New Regulations Increase Mandatory Disclosure Requirements for Anticompetitive Mergers and Acquisition Deals,” I examined recent lawsuits involving Wal-Mart’s acquisition of Office Depot and Office Max, two large retailing chains with locations in predominately urban and low-income areas.
I discussed the impact of these acquisitions on labor, product, convenience and location strategies, as well as competition and mergers-and-acquisition activity, in Wal-Mart and Office Depot stores across the country. In my article, I did not address the recent decisions in Zynga v. Playdom and Microsoft v. MacAfee. I will discuss those cases below, in order to explain why recent mergers and acquisitions may be particularly troubling under current law. But first, let me restate the importance of confronting all potentially significant competitive issues promptly and with the help of competent counsel.
According to a recent article in the New York Times, “since 2021, the United States government has filed more than 400 lawsuits and other legal actions against corporations that have engaged in illegal discrimination against employees, consumers or minorities.”
Those cases resulted in payouts of much-needed refunds and relief from serious harm. But the cases also demonstrated the extreme importance of confronting unlawful conduct head on. In many instances, the alleged perpetrator was not charged with or admitted to wrongdoing. And in many cases, the perpetrator was protected by powerful arbitration and anti-defamation doctrines that immunize employers against meaningful claims of discrimination.
Another important victory in the civil rights arena was the recent victory of the U.S. Supreme Court in Younger v. Black (usal), which held that an Immigration Officer had acted within his power when he ordered an immigrant not to reenter the country.
The opinion, written by Justice Anthony M. Kennedy, is highly relevant to the question of whether enforcement of immigration laws constitutes unlawful discrimination. The Court held that an Immigration Officer, while considering an applicant’s likelihood of becoming a dangerous criminal someday, has a reasonable cause to suspect that applicant might commit acts of terrorism after the application process has been concluded, for that reason alone, if that suspicion is reasonable. The opinion is not so inclusive, however, as it held that an Immigration Officer can rely upon a facially neutral administrative rule (the reasonably understandable and orderly procedure rule) to justify his belief that an applicant may engage in terrorist activity.
In the New York v. Johnson case, the Fourth Circuit held that the Border Patrol agent had violated the applicant’s constitutional right to freedom of speech and due process when he repeatedly told the applicant that he would be deported, and that he would be subjected to arrest and jail unless he took leave of the country.
The court found that these repeated statements chilled the applicant’s free speech and caused him to take his chances of returning to the United States. The opinion, written by the most liberal justice on the Court, provides no protection for American workers from repeated attempts to fleece employers of their paychecks, benefits and labor without providing any explanation of why doing so is necessary. The decision does nothing to enhance the rights of those who have been exploited by employers seeking to reduce their immigration rates.
One of the most significant victories in recent years for immigrant rights advocates was the recent victory of the California Supreme Court in Hernreault vs. Napa.
The court found that an Immigration officer, pursuant to a court order, used excessive force when arresting an individual for drug trafficking. As a result of this lack of evidence and inadequate findings, the court ordered the officer to pay damages for injuries suffered while arresting the individual. These types of lawsuits are indicative of a serious lack of transparency in enforcing the nation’s immigration laws. Without meaningful challenges to the enforcement of our nation’s immigration system, many individuals will continue to fall prey to employers seeking to exploit any legal loophole they can find to hire illegal aliens.
