Tag Archives: Adam L. Goodman

The Supreme Court’s Business Docket: October Term 2023 in Review

by John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Akua Abu

Photos of the authors

Left to right: John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Akua F. Abu. (Photos courtesy of the authors)

In early July, the Supreme Court concluded its most consequential Term in years, with a flood of decisions on contentious issues ranging from abortion access to the regulation of social media companies and gun possession to presidential immunity. The Court’s business docket was no less active. While the Consumer Financial Protection Bureau narrowly survived a constitutional challenge to its funding mechanism, the Court’s conservative majority elsewhere struck body blows to the administrative state—including the long-anticipated reversal of the Chevron doctrine of judicial deference to agency interpretation of ambiguous statutes. Beyond this headline-grabbing showstopper, the Court issued a string of commercially significant decisions, affecting bankruptcy, arbitration, securities, and employment law. We summarize below the key business decisions from this Term and flag a few key cases to watch in the coming Term.

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FTC Alleges “Serial Acquirer” Theory in Challenge to Consummated PE Deals

by Andrew J. Nussbaum, Jonathan M. Moses, Nelson O. Fitts, Adam L. Goodman, and Itai Y. Thaler

Photos of the authors

From left to right: Andrew J. Nussbaum, Jonathan M. Moses,  Nelson O. Fitts, Adam L. Goodman, and Itai Y. Thaler. (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

Last week, the Federal Trade Commission sued U.S. Anesthesia Partners, Inc. (“USAP”) and its private equity investor, Welsh, Carson, Anderson & Stowe, as well as a number of Welsh Carson entities, in federal district court, alleging that USAP and Welsh Carson conspired to monopolize and reduce competition for anesthesia services in Texas.  The FTC’s complaint alleges that, beginning in 2012, Welsh Carson, through its investment in USAP — which varied between 23% and 50.2% over the relevant period — directed a “roll-up scheme” to acquire and consolidate over a dozen Texas anesthesia practices; caused price increases across the state; and coordinated prices and allocated markets with some of the remaining independent anesthesia providers.  The complaint claims violations of the Sherman Act, the Clayton Act, and the FTC Act, and seeks unspecified “structural relief” that could include restitution and divestitures.

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FTC Diminishes Role of Administrative Law Judge

by Jonathan M. Moses, Nelson O. Fitts, and Adam L. Goodman

Photos of the authors

From left to right: Jonathan M. Moses, Nelson O. Fitts, and Adam L. Goodman (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

Recently, the FTC quietly issued a final rule modifying its internal procedures to diminish the role of its Administrative Law Judge.  The ALJ adjudicates, among other things, the agency’s challenges to mergers and acquisitions under the antitrust laws.  The move is of a piece with the agency’s agenda under Chair Lina Khan—on which we have commented here, here, and here—and underscores the significance of numerous pending challenges to the constitutionality of the FTC’s in-house adjudicative process. 

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Supreme Court Rejects Challenge to California Law Alleged to Burden Out-of-State Industry

by John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Jacob Miller

Photos of the authors

From left to right: John F. Savarese, Kevin S. Schwartz, Noah B. Yavitz, Adam L. Goodman, and Jacob Miller (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

Recently, a divided Supreme Court upheld the constitutionality of a California law banning the in-state sale of meat from pigs confined under specified “cruel” conditions. Petitioners — two industry organizations — had alleged the law violates the Commerce Clause by imposing substantial costs on out-of-state producers and impermissibly regulating the national pork market. This challenge marked an effort by the industry to expand the so-called “dormant” Commerce Clause, which polices states’ ability to enact regulations with interstate impact when Congress has chosen not to act in the field sought to be regulated by a state. That effort failed. In National Pork Producers Council v. Ross, all nine Justices rejected petitioners’ argument that there exists an “almost per se” rule forbidding enforcement of state laws that have the practical effect of imposing prescriptions on commerce outside the state.

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