On March 9, the FTC unanimously voted to block the proposed merger between the nation’s largest provider of home mortgage loan origination systems (LOS) and other key lender software tools, and its top competitor that offers the same services. In its complaint, the FTC alleged that one company owns the country’s dominant LOS platform, while the other company owns and operates the second-largest platform. In a press release announcing the administrative complaint, the FTC stated that the deal “would drive up costs, reduce innovation, and reduce lenders’ choices for tools necessary to generate and service mortgages.”…
Continue Reading FTC Seeks to Block Deal Between Top Mortgage Loan Technology Providers

What Happened?

On Friday, February 3, the Department of Justice, Antitrust Division (the “DOJ”) announced its withdrawal of three policy statements on health care antitrust enforcement: (1) The Department of Justice and Federal Trade Commission Antitrust Enforcement Policy Statements in the Healthcare Area (Sept. 15, 1993); (2) The Department of Justice and Federal Trade Commission Statements of Antitrust Enforcement Policy in Healthcare (Aug. 1, 1996); and (3) The Department of Justice and Federal Trade Commission Statement of Antirust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011) (together, the “Healthcare Statements”). It has been…
Continue Reading Department of Justice Withdraws Key Healthcare Antitrust Policy Statements

1. Higher Jurisdictional Thresholds For HSR Filings

On January 23, 2023, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The jurisdictional thresholds are revised annually based on the change in Gross National Product (GNP).
Continue Reading Higher Jurisdictional and Filing Fees Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced

According to people with knowledge of the matter, the Federal Trade Commission is conducting a preliminary investigation of soft drink companies to determine whether their pricing practices in the soft drink market segment violate the price discrimination prohibitions of the Robinson-Patman Act (the “RPA”). Section 2(a) of the RPA makes it unlawful for a supplier to discriminate in price between competing resellers of “commodities of like grade and quality” when the effect of such discrimination is to injure competition.
Continue Reading A Blast from the Past: FTC Bringing Back Enforcement of Robinson-Patman Act

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a broad proposed rule that would ban employers from imposing noncompete clauses on their workers. The FTC press release announcing the proposed rule states that noncompete clauses—which apply to about one in five American workers—suppress wages, hamper innovation, block entrepreneurs from starting new businesses and reduce American workers’ earnings between $250 billion and $296 billion per year.[1] The proposed rule would prohibit employers from: (1) entering into or attempting to enter into a noncompete with a worker; (2) maintaining a noncompete with a worker; or (3) representing to a…
Continue Reading FTC Seeks to Ban Noncompete Agreements in Employment Contracts

On Dec. 29, 2022, President Biden signed into law H.R. 2617, the “Consolidated Appropriations Act, 2023.” Included within H.R. 2617 is The Merger Filing Fee Modernization Act of 2022, which impacts HSR filings as set forth below:…
Continue Reading New Law Substantially Increases HSR Filing Fees for Large Transactions

It is widely reported that healthcare is a top antitrust enforcement priority in the U.S. The healthcare industry has undergone a transformation over the over the last twenty years and now comprises 17.7% of the U.S. gross domestic product and over $3.795 trillion of the U.S. government budget. Mega-deals among national payors and household names have grabbed headlines and been targets of enforcement by the U.S. Department of Justice, Antitrust Division (the “DOJ”) and Federal Trade Commission (“FTC”) (collectively, “the Agencies”).
Continue Reading Private Equity & Healthcare: Antitrust Enforcement in 2023–PE Roll-Ups in the Cross Hairs

On November 10, 2022, the Federal Trade Commission issued its “Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act.” The Statement replaces prior guidance on the subject that was rescinded by the FTC on July 1, 2021[1] and “supersedes all prior FTC policy statements and advisory guidance on the scope and meaning of unfair methods of competition under Section 5 of the FTC Act.”…
Continue Reading FTC Policy Statement on the Scope of Unfair Methods of Competition – A Broad But Vague Warning

In her September 20, 2022 statement before the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, Federal Trade Commission (“FTC”) Chairwoman Lina Kahn emphasized the FTC’s continued work combating repair restrictions that allegedly harm consumers, explaining that the FTC is “prioritizing action against business practices that unlawfully restrict consumers’ ability to repair their products, costing them more over the long term.”[1]…
Continue Reading Federal Trade Commission Focused on Right to Repair Restrictions

Representing a sizable portion of the American economy, few industries in the United States have received more attention from the press, legislators, and antitrust agencies than the healthcare industry—particularly in recent years. Recent developments at the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) reaffirm that healthcare remains a top antitrust enforcement priorities in the United States.
Continue Reading U.S. Healthcare Industry Remains Antitrust Enforcement Priority

The Department of Justice recently filed a complaint to prevent Booz Allen Hamilton’s $440 million acquisition of “agile and innovative” competitor EverWatch, Inc.[1] Among the notable aspects of the complaint is its definition of the relevant market as a single NSA contract and its assertion that the merger agreement itself constituted a violation of Section 1 of the Sherman Act.
Continue Reading DOJ Sues to Block Merger Between Booz Allen Hamilton and EverWatch Based on Antitrust Concerns Relating to Single-Contract Market

On 10 May 2022, the European Commission adopted new EU competition rules for vertical distribution agreements that entered into force on 1 June 2022, bringing important amendments to the current rules by partly narrowing the safe harbour but also allowing for more flexibility. Distribution agreements that are already in force on 31 May 2022 benefit from a one-year transitional period.
Continue Reading Updated EU Competition Rules for Vertical Agreements

Since President Biden’s July 2021 direction to the Federal Trade Commission (“FTC”) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” the FTC has ratcheted up its scrutiny of and investigations into non-compete agreements and other restrictive covenants. Now, the FTC has expanded beyond post-employment restrictive covenants to tackle “sale of business” non-competes. Most recently, the FTC voted in favor of a deal-changing proposed order against ARKO Corp. related to its 2021 acquisition of sixty fuel outlets from Corrigan Oil Company.
Continue Reading Buyer (and Seller) Beware: The FTC Is Coming for Your M&A Non-Competes