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On 26 March 2024, the IRS Advance Pricing and Mutual Agreement (APMA) Program issued their 25th annual Advance Pricing Agreement (APA) report describing the experience, structure, and activities of the APMA Program during calendar year 2023. The report provides statistical information about the numbers of APA applications received and resolved during the year, including countries involved and transfer pricing methods employed. This article identifies key takeaways based on the data from the report and our experience advising companies during the APA process.

Esparza v. Kohl’s, Inc., confirms that sharing electronic data with third-party applications or service providers without the website visitor’s consent creates a risk of lawsuits and potential liability for website defendants in states that require all parties to consent to interception of communications.

The Federal Trade Commission (FTC) recently issued its highly anticipated final rule on noncompetes, imposing a near-total ban on worker noncompetes in the United States. Barring injunctive relief from legal challenges (which have already started), the rule will take effect 120 days from publication in the federal register.

On April 10, 2024, the Department of Justice Antitrust Division announced that it had secured a guilty plea from a fuel truck company owner for conspiracy to monopolize trade in violation of Section 2 of the Sherman Act. This policy shift has expanded the scope of the DOJ’s criminal antitrust enforcement agenda. Accordingly, companies should ensure that their employees are properly complying with antitrust regulations and continue to monitor as this revived area of antitrust law develops.

On 9 April 2024, Treasury released two sets of proposed regulations regarding the excise tax on repurchases of corporate stock under section 4501. The proposed regulations were published in the Federal Register on 12 April 2024. Comments are due on the procedural matters by 13 May 2024, but taxpayers have until 11 June 2024 to submit comments on the substantive guidance.

Both the Antitrust Division of the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) (collectively, “Agencies”) have submitted a joint Statement of Interest in a third-party dispute currently active in the Federal District of New Jersey. The Statement clarifies the Agencies’ positions on price fixing through the use of algorithms. The third-party dispute involves a class action against casino hotels in the Atlantic City, New Jersey area.

On March 6, 2024, the US Securities and Exchange Commission adopted final rules (“Final Rules”) that enhance and standardize the disclosure of climate-related information in registration statements and Exchange Act reports. The Final Rules were scaled back after years of significant feedback from registrants and other stakeholders, with the Commission receiving more than 24,000 comment letters in response to the initial rule proposal in March 2022.

California’s regulators have made employment noncompetes (and knowing which employees are bound by them and how) a key compliance item.
Effective 1 January 2024, AB 1076 amends Section 16600 of the state’s Business and Professions Code to “void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment contract, no matter how narrowly tailored.” In addition, the law requires employers to notify certain current and former California employees that any agreement containing a noncompete provision is void.

On 7 March 2024 at the American Bar Association’s 39th National Institute on White Collar Crime, Deputy Attorney General Lisa Monaco announced several new initiatives the Department of Justice is implementing to address concerns around the use of AI in federal criminal activity along with potential corporate compliance failures that might facilitate the misuse of AI.

On 6 March 2024, California Assistant Attorney General Paula Blizzard announced at the American Bar Association’s annual National Institute on White Collar Crime the state’s intentions to reinvigorate criminal enforcement of the Cartwright Act, California’s primary antitrust statute. California has not criminally prosecuted violations of the Cartwright Act in 25 years. Blizzard’s announcement comes shortly after California enacted legislation to codify restrictions against no-poach and non-compete clauses. All-in-all, state officials appear poised to follow in the Biden administration’s footsteps and increase antitrust enforcement. Companies should be on notice of certain states like California that are taking steps to strengthen antitrust enforcement and alleged agreements to fix prices, divide markets, and rig bids could soon lead to criminal penalties under either state or federal statutes.