This blog article is relevant to all companies which are parties to a vertical agreement (i.e. an agreement entered into between two parties operating at different levels of trade – typically distribution agreements) concerning the sale or purchase of products or services in the European Union/European Economic Area.
Continue Reading Non-Exclusive: Dual Distribution and Exclusivity
On June 27, 2023, the FTC and DOJ (together the “Agencies”) announced a notice of proposed rulemaking (“NPRM”) proposing extensive revisions to both the rules that implement the Hart-Scott-Rodino Antitrust Improvements Act (the “Act” or “HSR Act”) and the Premerger Notification and Report Form (the “Form”) that merging parties must submit under the Act. Our previous analysis of the NPRM is covered here.
Continue Reading Mergers & Acquisitions Update: A Closer Look at the Impact of the FTC and DOJ’s Proposed HSR Act Filing Reform on Private Equity Firms
On September 21, 2023, the Federal Trade Commission (FTC) sued Welsh, Carson, Anderson & Stowe (WCAS) and U.S. Anesthesia Partners, Inc. (USAP), in the Southern District of Texas, alleging the two companies “[e]xecuted a multi-year anticompetitive scheme to consolidate anesthesiology practices in Texas, drive up the price of anesthesia services provided to Texas patients, and boost their own profits.”
Continue Reading FTC Sues Private Equity Firm and Anesthesiology Practice for Antitrust Violations
On August 16, 2023, the Federal Trade Commission (“the FTC”) marked its first enforcement action of the prohibitions on interlocking directorates under Section 8 of the Clayton Act in over 40 years. Section 8 prohibits an officer or director of one firm from simultaneously serving as an officer or director of a competing firm under most circumstances.[1] The FTC accepted for public comment a consent order conditioning the 5.2 billion dollar cash‑and-stock deal between two rival natural gas producers on preventing “entanglements between the two companies and the exchange of confidential, competitively sensitive information.” Under the consent order, Quantum
Continue Reading Antitrust Enforcement Agencies Continue to Target Interlocking Directorate Arrangements
As generative AI becomes an increasingly integral part of the modern economy, antitrust and consumer protection agencies continue to raise concerns about the technology’s potential to promote unfair methods of competition. Federal Trade Commission (“the FTC”) Chair Lina Khan recently warned on national news that “AI could be used to turbocharge fraud and scams” and the FTC is watching to ensure large companies do not use AI to “squash competition.”[1] The FTC has recently written numerous blogs on the subject,[2] signaling its intent to “use [the FTC’s] full range of tools to identify and address unfair methods of
Continue Reading AI Under the Antitrust Microscope: Competition Enforcers Focusing on Generative AI from All Angles
On 12 July 2023, the new EU Foreign Subsidies Regulation (“FSR”) started applying to all non-EU and EU companies and all sectors of the economy. FSR filled a regulatory gap which existed since 1958. The European Commission (the “Commission”) is vested by FSR with wide investigative and decisional powers to prevent any distortions in the EU internal market caused by “foreign subsidies” (“FS”) granted by non-EU countries.
Continue Reading The EU Foreign Subsidies Regulation: New Rules for All Companies Active in the EU
On July 19, 2023, the Federal Trade Commission and Department of Justice jointly published long-anticipated proposed merger guidelines (the “Proposed Merger Guidelines”), which had been expected since President Biden issued an Executive Order Promoting Competition in the American Economy in the summer of 2021. According to the agencies, the Proposed Merger Guidelines “build upon, expand, and clarify” the prior guidance,[1] to keep up with “modern” market realities.[2] In contrast to the previous versions, the Proposed Merger Guidelines cover both horizontal and vertical mergers. They also cite case law for the first time.[3] Reflecting the Biden Administration’s views
Continue Reading A Big Deal: FTC and DOJ Issue Long-Awaited New Draft Merger Guidelines
The FTC announced today a notice of proposed rulemaking (“NPRM”)[1] proposing extensive revisions to both the rules that implement the Hart-Scott-Rodino Antitrust Improvements Act (the “Act” or “HSR Act”), and the Premerger Notification and Report Form (the “Form”) that merging parties must submit under the Act. The NPRM would also implement the Merger Filing Fee Modernization Act of 2022.
Continue Reading Notice of Proposed Rulemaking: FTC Proposes to Redesign and Dramatically Expand the Scope of the HSR Act Filing Process
It has been another busy year for the Department of Justice’s Procurement Collusion Strike Force (PCSF). Formed in 2019, the Department of Justice created the PCSF, a joint law enforcement effort to combat antitrust crimes and related fraudulent schemes that impact government procurement, grant, and program funding at all levels of government – federal, state and local. The PCSF is a constellation of partnerships among the Antitrust Division of the U.S. Department of Justice, multiple U.S. Attorneys’ Offices around the country, the Federal Bureau of Investigation (FBI), and the Inspectors General for multiple federal agencies working together to crack down
Continue Reading Government Contracting Companies Beware: DOJ’s Procurement Collusion Strike Force is Global, Growing, and Going Strong
On June 2nd, 2023, the Federal Trade Commission (“the FTC”) announced modifications to its in-house adjudicative proceedings. Under these new rules, an administrative law judge (“ALJ”) presiding over an administrative hearing can only issue “recommended” decisions that are reviewed automatically by the FTC Commissioners (the “Commission”). The Commission, during their now-automatic review, may affirm the recommended decision in full or reject the decision, in whole or in part, and issue its own decision adopting different findings of fact or conclusions of law. Before the Commission acts on an ALJ’s recommended decision, it must provide the parties with an opportunity to
Continue Reading FTC Modifies Role of Administrative Judges Amid Heightened Agency Scrutiny
The subject of corporate leniency as a tool for combating criminal conduct seems to be top of mind for federal prosecutors. In the last few months, the Deputy Attorney General, Lisa Monaco, and senior enforcers in the Criminal Division, Assistant Attorney General Kenneth A. Polite, Jr. and Deputy Assistant Attorney General Lisa H. Miller, have announced and reinforced the Division’s commitment to its new Corporate Enforcement Policy, which rewards timely self-reporting and other forms of “extraordinary” cooperation in the form of declinations and deferred prosecution agreements.[i]
Continue Reading Recent Antitrust Leniency Program Revisions Examined in ABA’s 2023 Edition of the Antitrust Cartel Leniency and Sentencing Handbook
Antitrust enforcement has been heating up over the last few years in several areas – notably in healthcare and labor.[1] As the antitrust climate intensifies and spreads, private equity (PE) firms are starting to feel the heat, finding themselves the focus of increased antitrust scrutiny. Significantly, antitrust enforcement and litigation risks are moving from the portfolio companies to the PE firms themselves. Three areas of heightened risk stand out: interlocking directorates, roll-ups, and PE divestiture buyers.[2]
Continue Reading Hot Antitrust Enforcement Climate Reaches Private Equity
The United States is broadening the scope and diversity of its energy mix at a rate and to an extent not seen in a century, if ever. The changes underway provide both important opportunities and critical challenges for owners seeking to repurpose existing assets in a market governed by overlapping federal, state and local regulations.
Continue Reading Six Key Considerations for Transitioning Existing Fossil Fuel Transport, Storage and Electricity Generation Assets to New Uses
On April 11, 2023, the Antitrust Division of the United States Department of Justice (the “DOJ”) issued a public comment on four proposed rules promulgated by the United States Securities and Exchange Commission (“the SEC”). The four proposed rules target national market system (“NMS”) stocks by (1) expanding disclosures of order execution information (“Rule 605 Proposal”);[1] (2) amending minimum pricing increments, access fees, and transparency requirements (“Regulation NMS Proposal”);[2] (3) enhancing competition for certain orders (“Order Competition Proposal”);[3] and (4) establishing a duty of best execution for certain market participants (“Best Execution Proposal”).[4] The DOJ’s comment
Continue Reading DOJ Antitrust Division Cautions SEC on Proposed Equity Market Restructuring
The Federal Trade Commission (the “FTC”) and Department of Justice, Antitrust Division (the “DOJ”) (together the “Agencies”) continue to carry out the Biden Administration’s stated mission to reinvigorate antitrust enforcement to “Promote Competition in the American Economy.”
Continue Reading Restrictive Covenants in Real Estate: Next Antitrust Enforcement Target?
On April 14, 2023, in a decision involving appeals regarding two separate agency enforcement actions, the Supreme Court unanimously held that respondents in such actions may raise certain constitutional challenges outside of the administrative proceedings. Axon Enterprise, Inc. v. Federal Trade Commission.
Continue Reading Supreme Court Holds That Respondents in Agency Enforcement Actions May Raise Constitutional Challenges Outside of Administrative Proceedings