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Eleanor Hudson Callaway is an Associate in Vedder Price’s Washington, DC office and a member of the firm’s Litigation group.

Ms. Callaway has counseled clients on the validity and eligibility of patent claims for district court litigation and inter partes review at the Patent and Trademark Appeal Board. In addition, she has provided strategic counsel on all litigation matters, particularly patent licensing matters related to standard essential patents and F/RAND obligations and the accompanying commercial issues. Ms. Callaway has also drafted briefs related to discovery disputes in district court and at the International Trade Commission, provided trial advice in a global litigation campaign against Apple, and provided litigation strategy on 101 rulings.

Ms. Callaway received her law degree from The University of Texas School of Law and her undergraduate degrees from Auburn University (Economics, B.S., and Political Science, B.A.). While in law school, Ms. Callaway was the articles and notes editor of the Texas Review of Litigation, the executive editor of the Texas Review of Entertainment and Sports Law, a board member at-large of the Texas Law Fellowships and a judging director for the Board of Advocates.

With the advent of messaging apps such as Slack, Microsoft Teams, and Signal, the ways in which employees are able to communicate and collaborate with each other are rapidly expanding. At the same time, companies have increased use of document collaboration platforms such as Microsoft SharePoint and eRooms to supplement or replace traditional closed-system document management systems. Message and document retention within these platforms is uneven and, in some cases (such as in the popular messaging app SnapChat), speedy message erasure is not a bug, but a feature. On Friday, January 26, the Federal Trade Commission (“FTC”) and Department of Justice Antitrust Division (“DOJ”) announced that the two agencies are updating the standard preservation obligation guidance to keep pace with the expanded use of collaboration tools that do not otherwise prioritize message retention.Continue Reading FTC and DOJ Update Preservation Obligation Guidance

On Monday December 18, the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) released the final version of their Merger Guidelines (“Guidelines”), capping a nearly two-year effort to implement a policy capturing the Biden Administration’s aggressive enforcement stance in merger reviews. The Guidelines are intended to provide transparency into how the agencies evaluate whether a merger or acquisition may lessen competition in violation of the Clayton Act. After the agencies released the draft merger guidelines in July (“Draft Guidelines”), the agencies received over 3,000 public comments, many of them criticizing the Draft Guidelines for being too aggressive and departing too radically from controlling case law and practice.  The final Guidelines reflect the agencies’ consideration of the comments received.

While the final Guidelines largely maintain the same aggressive positions of the draft, they introduce more nuanced language that signals more openness to rebuttal evidence than the Draft Guidelines. The most apparent change is an across-the-board shift away from a flat prohibition on certain effects and toward a more traditional warning about the possible consequences when those effects are present. This is an important change to the draft language, which had come under fire for appearing to set forth several rules of per se illegality. For example, in Guideline 2, the draft language stated that “mergers should not eliminate substantial competition between firms,” (emphasis added), signaling the possibility that the agencies would challenge any merger between rivals even when remaining competitors would discipline any post-merger attempt to raise prices or reduce output or quality. In contrast, the final language states that “mergers can violate the law when they eliminate substantial competition between firms” (emphasis added), affirming what has always been the case.Continue Reading FTC and DOJ Publish 2023 Merger Guidelines

On September 26, 2023 the Federal Trade Commission (FTC) and 17 states filed suit against Amazon in the Western District of Washington, alleging the tech giant uses anticompetitive practices to maintain its monopoly power in its online supermarket store and marketplace services. The FTC seeks a permanent injunction to prohibit Amazon from continuing its alleged “punitive and coercive tactics.”

The FTC alleges Amazon engages in exclusionary conduct that both hinders the ability of competitors to meaningfully compete on Amazon’s platform, and inflates online prices for consumers. Amazon owns its marketplace platform, sells its products on its platform in competition with other online sellers, and controls the fulfillment, shipping, and delivery network that sellers and customers are incentivized to use. As alleged by the FTC, Amazon (among other things) punishes companies that discount their products on other platforms by burying those sellers in its search results, coerces sellers to obtain “Prime” eligibility for their products and use Amazon’s higher-cost delivery network, biases search results to preference Amazon’s own products, and charges unreasonable fees to hundreds of thousands of third-party sellers.Continue Reading The FTC and States Sue Amazon, Alleging Anticompetitive Practices

On July 3, President Biden announced nominees Andrew Ferguson and Melissa Holyoak to the Federal Trade Commission, filling two Republican vacancies.

Ferguson has served as the Solicitor General of Virginia since February 2022, overseeing the state’s appellate litigation, including at the Supreme Court and federal courts of appeals. He served as counsel for Senators Lindsey Graham (R-SC), Chuck Grassley (R-IA), and most recently, Mitch McConnell (R-KY). Ferguson spent several years in private practice after clerking for Judge Karen Henderson on the U.S. Court of Appeals for the D.C. Circuit and for Justice Clarence Thomas on the US Supreme Court. Ferguson earned his undergraduate and law degrees from the University of Virginia.Continue Reading White House Announces Nominees for FTC

On June 2, 2023, the United States Securities and Exchange Commission (“SEC”) dismissed 42 administrative enforcement actions and vacated 48 collateral industry bars because its Division of Enforcement (“Enforcement”) staff improperly had access to memoranda prepared to assist SEC Commissioners in deciding those matters.

The SEC investigates potential violations of the federal securities laws and is authorized by law to prosecute civil enforcement actions in its own in-house administrative courts or in federal court. The investigative and prosecutorial responsibilities are carried out by Enforcement staff and are required to be kept separate from the SEC’s in-house adjudication function.  However, on April 5, 2022, the SEC issued a statement disclosing that it identified a “control deficiency” in which certain SEC databases improperly allowed Enforcement staff to have access to memoranda prepared by the Office of the General Counsel Adjudication Group (“Adjudication Group”) to advise Commissioners in making decisions in administrative proceedings. Continue Reading SEC Dismisses 42 Enforcement Actions Because of Its Own Internal Control Deficiencies

By: Matthew A. Rossi and Eleanor Hudson Callaway

On Friday, April 14, 2023, the Supreme Court cleared the way for respondents in Federal Trade Commission (“FTC”) and Securities and Exchange Commission (“SEC”) administrative proceedings to challenge the constitutionality of those proceedings in federal district court while the administrative process is ongoing.  Typically, as required by