Antitrust Law Blog

Current Antitrust & Competition News & Regulatory Developments

As it continues to grapple with the COVID-19 pandemic, the healthcare sector will face increased antitrust scrutiny from the Biden administration, with the Federal Trade Commission (the “FTC”) and Department of Justice, Antitrust Division (the “DOJ”) (together the “Agencies”) as the Agencies ramp up their reviews not just of “horizontal” transactions (i.e., deals between competitors), but also of “vertical” transactions (i.e., deals that combine market participants at different levels of the healthcare industry, such as payors, hospitals, and physician practices).…
This 1970 hit by Simon & Garfunkel is a beautiful song about giving a helping hand to someone caught in a situation of distress.  And there is also broad consensus around the world that the digital platform markets are caught in troubled waters. A few mighty rivers run so high and so fast that they are drowning smaller creeks around them and carrying away anyone riding them. Different attempts to contain these massive flows have been made, but they were not strong enough. This has led to a widely visible enforcement gap, because the tools needed to build solid bridges…
Congress recently took two steps towards incentivizing private participation in federal cartel enforcement:  the permanent adoption of ACPERA, and enactment of the Criminal Antitrust Anti-Retaliation Act.  While now companies may have permanent incentives to self-report cartel activity, and whistleblowing employees may be better protected from employer retaliation, no surge in individual cartel reporting should be expected absent direct whistleblower financial incentives, such as found in other federal enforcement regimes.…
Lower Thresholds For HSR Filings On February 1st, 2021, the Federal Trade Commission announced revised, lower thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in Gross National Product (GNP) and had not been lowered since 2010.…
California Penal Code § 396 prohibits price gouging in California during a state of emergency. California enacted a few amendments to Section 396 that are effective now.  As explained in more detail below, among other things, the amendments close potential loopholes relating to e-commerce, sales of new products, and the relevant benchmark date for pre-emergency prices.…
The Federal Trade Commission (“FTC”) recently issued a notice of proposed rulemaking to amend the premerger notification rules (the “Rules”) that implement the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) to change the definition of “person” and create a new exemption.  The new definition of person is specifically designed to obtain more information from certain investment entities, such as investment funds and master limited partnerships, by including “associates” in the definition.…
At the same time as it issued its notice of proposed rulemaking expanding the definition of “person,” the Federal Trade Commission (“FTC”) issued an advance notice of proposed rulemaking (“ANPRM”) to request information related to seven topics “to help determine the path” for future amendments to the HSR Rules.  In explaining the reasons for the ANPRM, the FTC expressed its strong interest in making sure the Rules are “as current and relevant as possible,”  and observed that certain of the Rules, some of which have not been changed since they were first promulgated in 1978, may need updating.  The ANPRM…
As State aid measures granted by EU Member States continue to surge in the aftermath of the COVID-19 outbreak and ongoing pandemic, the European Commission (“Commission”) has turned to subsidies coming from non-EU countries. On 17 June, the Commission announced that it had adopted a consultative White Paper which sets out proposed new legal tools to deal with the distortive effects caused by foreign subsidies in the European Single Market. With this, it opened a public consultation seeking input from stakeholders on the proposals set out in the White Paper. The public consultation will be open until 23 September 2020.…
* Reprinted with permission from Global Competition Review. The full version of GCR’s US Courts Annual Review, published in July 2020, is available here. The United States Supreme Court’s single antitrust case of the 2019 term, Apple, Inc v. Pepper upheld the long-standing and often criticized direct purchaser rule in the realm of sales through iPhone apps and other online sales platforms. The direct purchaser rule, established through the Supreme Court’s decisions in Hanover Shoe v. United Shoe Machinery Co and Illinois Brick Co v. Illinois limited standing to “the overcharged direct purchaser, and not others in the chain…
On June 22, 2020, Assistant Attorney General Makan Delrahim, head of the Antitrust Division at the Department of Justice, and Jay Clayton, Chairman of the Securities and Exchange Commission, signed a Memorandum of Understanding (“MOU”) concerning “Cooperation with Respect to Promoting Competitive Conditions in the Securities Industry.”…
On July 9, 2020, the U.S. Supreme Court granted petitions for certiorari in FTC v. Credit Bureau Center and AMG Capital Management, LLC v. FTC, cases that question the Federal Trade Commission’s authority to demand equitable monetary relief such as restitution and disgorgement under Section 13(b) of the FTC Act, which permits courts to issue “injunction[s]”  without express reference to equitable monetary relief. The Court’s decision in these cases will have sweeping ramifications for the FTC, which has referred to its efforts to obtain disgorgement under Section 13(b) of the FTC Act as “a cornerstone of the FTC’s enforcement program…
The cannabis industry faced heightened antitrust scrutiny from the Department of Justice (DOJ) in 2019.  There were public reports regarding several “Second Requests” seeking information about potential cannabis transactions.  Second Requests are a part of expensive and time-consuming antitrust investigations typically issued in the approximately 2 percent of transactions that present significant anticompetitive concerns.  To have several Second Requests within a short period of time in the same industry, particularly in an emerging industry such as cannabis, appeared unusual to many observers.  Recent events have shed light on some possible reasons for DOJ’s heightened focus.…