Commercial Litigation Update

On September 11, 2025, General Dynamics Corporation (“General Dynamics”), along with other naval manufacturers and defense contractors, petitioned the Supreme Court of the United States to consider whether an unwritten “no-poach” agreement was sufficient to invoke the doctrine of fraudulent concealment and toll the Sherman Anti-Trust Act’s (the “Sherman Act”) four-year statute of limitations.

In May, the Fourth Circuit, in permitting an over-decade-old claim to proceed, held that an unwritten secret agreement was sufficient to toll the Sherman Act’s limitations period, noting that “neither logic nor our precedent supports distinguishing between defendants who destroy evidence . . . and defendants who carefully avoid creating evidence in the first place.” However, that decision conflicts with those of the Fifth, Sixth, and Ninth Circuits—all of which previously found that mere secrecy was not adequate to invoke a fraudulent concealment tolling theory.

Our colleagues Janene Marasciullo and David J. Clark of Epstein Becker Green have a new post on the Trade Secrets and Employee Mobility blog that will be of interest to our readers: "Less Than a Month After DOJ Brings Its First Wage-Fixing Indictment, DOJ Brings Its First "No-Poach" Indictment."

The following is an excerpt:

In the past month, the U.S. Department of Justice (DOJ) has made good on its 2016 threat, contained in its Antitrust Guidance for Human Resource Professionals (“Antitrust Guidance”) to bring criminal charges against people or corporations who enter into ...

On September 30, 2020, the Third Circuit reversed a decision by the Eastern District of Pennsylvania ordering AbbieVie, Inc. (“AbbieVie”) and Besins Healthcare Inc. (“Besins”) to pay $448 million in disgorgement of ill-gotten profits for allegedly filing sham patent lawsuits to stifle competition. AbbieVie and Besins had filed patent infringement lawsuits against two developers of generic alternatives to its brand-name testosterone gel product AndroGel. The FTC sued AbbieVie and Besins in 2014 alleging that the patent suits were baseless and brought for no other ...

Consumer complaints regarding alleged price gouging have been increasing as the COVID-19 pandemic continues. Generally, price gouging occurs when there unreasonable increase the price of a consumer good (or service) during a public emergency. Although we are facing a national emergency, except for a March 23, 2020, executive order issued by President Trump prohibiting hoarding and price gouging of certain critical supplies, there is no federal price gouging law. Although there are proposal pending in Congress to more broadly prohibit price gouging, currently, the issue is ...

On Monday March 23, 2020, President Donald Trump signed an executive order aimed at preventing hoarding and price gouging.  Attorney General William H. Barr indicated that the order is authorized under the Defense Protection Act, which allows the United States to compel private industry to assist in meeting national defense needs in response to national emergencies.

The new executive order empowers the Health and Human Services Secretary to designate supplies as “critical.”  Hoarding – accumulating quantities beyond those reasonable to satisfy personal or business needs ...

At the time of publication, at least twenty four states, plus Washington D.C. have declared states of emergency related to the novel coronavirus (“COVID-19”), with that number growing by the hour.  In addition to making more resources available to residents, in many cases, the declarations also trigger additional protections to consumers in the form of anti-price gouging laws. These laws, which automatically go into effect, are intended to prevent merchants from significantly increasing the cost of consumer goods and services during a crisis.

For instance, in New Jersey a ten ...