On November 12, 2024, the Federal Trade Commission (“FTC”) published its Final Rule and Statement of Basis and Purpose amending the Premerger Notification and Report Form filed for transactions reported under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”).
Unless the Final Rule is delayed or rescinded by the FTC, the new
On October 10, 2024, the Federal Trade Commission (“FTC”) released final revisions of the rules that govern filings under the Hart-Scott-Rodino (“HSR”) Antitrust Improvements Act of 1976, as amended (the “Final Rules”). The Final Rules will take effect 90 days after they are ultimately published in the Federal Register.
The FTC scaled back or
The Federal Trade Commission (“FTC”) has filed a Complaint and a proposed Consent Order that would bar the CEO of oil company Hess from sitting on the Board of Chevron after the merger of the two companies. According to the Complaint filed in the matter on September 29, CEO John B. Hess has a long
Private equity investments in health care to be subject to increased oversight from federal and state regulators, including antitrust officials
Federal and state governmental regulation of health care transactions continues to increase rapidly. At the federal level, there is increased focus on the role of private equity in health care and the perceived impact on access to care, quality of care and pricing. At the same time, a growing number of states have passed and continue to propose legislation that increases state oversight of health care transactions. As a result of this increase in regulatory scrutiny from federal and state regulators, parties interested in conducting health care transactions must consider various regulatory requirements and the factors regulators take into account when analyzing proposed health care transactions. Continue Reading Health Care Transactions Facing Increased Federal and State Regulatory Scrutiny
On May 9, 2024, the Department of Justice (“DOJ”) announced the formation of the Antitrust Division’s Task Force on Health Care Monopolies and Collusion (“HCMC”). The HCMC “will guide the division’s enforcement strategy and policy approach in health care, including by facilitating policy advocacy, investigations and, where warranted, civil and criminal enforcement in health care markets.” Continue Reading DOJ Focus on Health Care Marches Forward with Formation of Task Force
On Tuesday, April 23, 2024, the Federal Trade Commission (“FTC”) voted 3-2 to adopt a Final Rule banning virtually all non-compete agreements between employers and employees. The Final Rule will not go into effect until 120 days after its publication in the Federal Register (the “Effective Date”), and its enforcement could be further delayed or barred by court challenge or Congressional intervention. Continue Reading The FTC Adopts Final Rule Banning Employee Non-Compete Agreements
With the advent of messaging apps such as Slack, Microsoft Teams, and Signal, the ways in which employees are able to communicate and collaborate with each other are rapidly expanding. At the same time, companies have increased use of document collaboration platforms such as Microsoft SharePoint and eRooms to supplement or replace traditional closed-system document management systems. Message and document retention within these platforms is uneven and, in some cases (such as in the popular messaging app SnapChat), speedy message erasure is not a bug, but a feature. On Friday, January 26, the Federal Trade Commission (“FTC”) and Department of Justice Antitrust Division (“DOJ”) announced that the two agencies are updating the standard preservation obligation guidance to keep pace with the expanded use of collaboration tools that do not otherwise prioritize message retention.Continue Reading FTC and DOJ Update Preservation Obligation Guidance
On January 22, the FTC announced updated dollar thresholds triggering the bar on interlocking officers and directors under Section 8 of the Clayton Act, 15 U.S.C. § 19. Section 8 of the Clayton Act prohibits one person from serving as a director or officer of two competing corporations if the corporations meet certain size and competitive sales thresholds. For 2024, Section 8 applies if each corporation has capital, surplus, and undivided profits aggregating more than $45,257,000; however, no corporation is covered if the competitive sales of either corporation are less than $4,525,700. These new thresholds took effect on January 22, 2024.
The next day, the FTC announced updated dollar thresholds triggering the jurisdiction of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”), 15 U.S.C. § 18a, to certain acquisitions. The new HSR Act thresholds will take effect 30 days after publication in the Federal Register. Continue Reading FTC Increases HSR Thresholds and Clayton 8 Thresholds
On Monday December 18, the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) released the final version of their Merger Guidelines (“Guidelines”), capping a nearly two-year effort to implement a policy capturing the Biden Administration’s aggressive enforcement stance in merger reviews. The Guidelines are intended to provide transparency into how the agencies evaluate whether a merger or acquisition may lessen competition in violation of the Clayton Act. After the agencies released the draft merger guidelines in July (“Draft Guidelines”), the agencies received over 3,000 public comments, many of them criticizing the Draft Guidelines for being too aggressive and departing too radically from controlling case law and practice. The final Guidelines reflect the agencies’ consideration of the comments received.
While the final Guidelines largely maintain the same aggressive positions of the draft, they introduce more nuanced language that signals more openness to rebuttal evidence than the Draft Guidelines. The most apparent change is an across-the-board shift away from a flat prohibition on certain effects and toward a more traditional warning about the possible consequences when those effects are present. This is an important change to the draft language, which had come under fire for appearing to set forth several rules of per se illegality. For example, in Guideline 2, the draft language stated that “mergers should not eliminate substantial competition between firms,” (emphasis added), signaling the possibility that the agencies would challenge any merger between rivals even when remaining competitors would discipline any post-merger attempt to raise prices or reduce output or quality. In contrast, the final language states that “mergers can violate the law when they eliminate substantial competition between firms” (emphasis added), affirming what has always been the case.Continue Reading FTC and DOJ Publish 2023 Merger Guidelines
On November 13, 2023, the DOJ Antitrust Division moved to dismiss its last remaining no-poach indictment. In 2021, a Texas grand jury indicted Surgical Care Affiliates (“SCA”) and a related company for conspiring with competitors not to solicit each other’s senior-level employees. While a motion to dismiss was pending in that case, a district court in Connecticut entered a judgment of acquittal (“JOA”) on labor market allocation charges brought against several engineering firms, ruling in United States v. Patel that, among other things, ample evidence of employees moving between the defendant companies meant that any conspiracy to restrict such movement could have had no “meaningful” effect on competition and was not illegal per se. Continue Reading An Uncertain Future for DOJ’s No-Poach Prosecutions