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
Judge Ada E. Brown of the Northern District of Texas this afternoon granted summary judgment in favor of Ryan, LLC and the plaintiff-intervenors in the case of Ryan, LLC v. Federal Trade Commission challenging the FTC’s ban on post-employment non-competes (“Non-Compete Rule”). Judge Brown concluded that the FTC lacked statutory authority to promulgate the
On April 17, 2024, the SEC’s Division of Examinations issued its latest risk alert regarding Rule 206(4)-1 of the Investment Advisers Act of 1940, known as the Marketing Rule. Following the examinations staff’s June 2023 and September 2022 risk alerts regarding areas of emphasis in examinations focused on compliance with the Marketing Rule, the latest risk alert highlighted initial observations from examinations of investment advisers’ compliance with the Marketing Rule and related rules under the Advisers Act. The risk alert focused on compliance with the Marketing Rule’s general prohibitions, Rule 206(4)-7 (the Compliance Rule), Rule 204-2 (the Books and Records Rule), and Form ADV disclosure requirements.Continue Reading SEC Staff’s Latest Marketing Rule Risk Alert Highlights Initial Observations from Examinations
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
The Office of the Comptroller of the Currency (“OCC”) recently sought comment on a proposed rule designed to increase the transparency of the standards applicable to the OCC’s review of business combinations (i.e., bank mergers, consolidations or the assumption of deposits) involving national banks and federal savings associations (the “NPRM”). Continue Reading Update: OCC Issues Notice of Proposed Rulemaking on Business Combinations
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
On September 26, 2023 the Federal Trade Commission (FTC) and 17 states filed suit against Amazon in the Western District of Washington, alleging the tech giant uses anticompetitive practices to maintain its monopoly power in its online supermarket store and marketplace services. The FTC seeks a permanent injunction to prohibit Amazon from continuing its alleged “punitive and coercive tactics.”
The FTC alleges Amazon engages in exclusionary conduct that both hinders the ability of competitors to meaningfully compete on Amazon’s platform, and inflates online prices for consumers. Amazon owns its marketplace platform, sells its products on its platform in competition with other online sellers, and controls the fulfillment, shipping, and delivery network that sellers and customers are incentivized to use. As alleged by the FTC, Amazon (among other things) punishes companies that discount their products on other platforms by burying those sellers in its search results, coerces sellers to obtain “Prime” eligibility for their products and use Amazon’s higher-cost delivery network, biases search results to preference Amazon’s own products, and charges unreasonable fees to hundreds of thousands of third-party sellers.Continue Reading The FTC and States Sue Amazon, Alleging Anticompetitive Practices