Further to our blog piece at the beginning of this year, there have been additional developments at the EU and national levels in respect to gun-jumping in merger cases. In general, a breach of EU or national rules could occur when the merging parties (i) fail to notify their merger when the relevant thresholds have been met; and/or (ii) the parties implement the transaction before receiving the approval(s) (i.e., fail to observe standstill obligations during the review period). The merger parties should not underestimate their obligations as failure to do so could result in substantial fines.

EU General Court confirmed a € 28 million fine for a failure to comply with EU merger control rules

On May 18, 2022, the General Court confirmed a fine of € 28 million  imposed by the European Commission on a Japanese multinational company specialising in the manufacture of optical and image processing products for its failure to observe the standstill and notification obligations in the acquisition of a Japanese medical equipment company.

The transaction was carried out in two steps through the acquisition of different types of shares. During the first step, the interim acquirer acquired different voting and non-voting shares (95% control of the target), and the ultimate acquirer acquired 5% of the shares of the target. As the second step, the acquirer exercised its share options, acquiring 100% of the shares of the target. While the transaction was notified to the Commission as a whole (i.e., the acquisition of 100% of all shares of the target) and the Commission cleared the transaction, the Commission also found that during the first step of the transaction, due to the partial implementation of the transaction, the acquirer failed to notify a concentration in breach of Article 4(1) of Regulation (EC) No 139/2004 and for implementing a concentration in breach of Article 7(1) of that regulation. The reason is that the first step was carried out before the notification of the transaction to the Commission.

The Court confirmed that the implementation of a transaction can take place as soon as the parties to the transaction implement operations contributing to a lasting change of control of the target. In other words, the implementation of the transaction can take place before the actual acquisition of control over the target.

French Competition Authority imposed a €7 million fine for a failure to comply with French merger control rules

The French Competition Authority imposed a fine of € 7 million  on a company active in the market for alcoholic beverages (especially production and distribution of spirits) for implementing its acquisition of another company active in the same market. Even though the merger was cleared on February 28, 2019, the acquirer was then subjected to dawn raids just a week after its’ clearance. The Authority found that the acquirer implemented the acquisition without submitting a notification to the Authority and failed to observe the standstill obligation under the French Commercial Code.

The Authority found that the acquirer exercised decisive influence over the target prior to the notification by:

  • Acquiring the majority stake in the target – resulting in 3 of 11 directors in the target being from the acquirer, which allowed them to obtain competitively sensitive information and monitor the activities of the target;
  • Intensifying commercial and financial relations between the parties, for example, by increasing supplies and opening credit lines; and
  • Being involved in the strategic and operational decisions of the target (e.g., through the involvement of appointing the managing director of the target).

The above cases highlight that even if an acquisition is ultimately cleared by a competent authority, the parties can still face substantial fines if they fail to notify the transaction before the implementation and/or implement the transaction before the authority has finalised the review. The parties should carefully assess each step of the proposed transaction to ensure merger control compliance at the EU and national level.

Steptoe’s antitrust team would be happy to support you in any merger control-related assessment.

The Court of Justice of the European Union (CJEU) handed down two judgments providing guidance on the protection against double jeopardy (the principle ne bis in idem) in competition law cases. Article 50 of the Charter of Fundamental Rights of the European Union (Charter) provides that “no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law“. However, cases C-117/20 Bpost and C-151/20 Nordzucker underlined that undertakings may be liable more than once upon the same material facts in so far as authorities act under a different legal basis and in a complementary manner. The judgments bear practical implications beyond the field of EU competition law.

The Bpost case relates to a discount tariff scheme for postal services deemed to be discriminatory toward some of Bpost’s customers; which was in place between January 2010 and July 2011. Based on the same material facts, Bpost was fined € 2,3 million euros by the sectoral authority, the Postal Regulatory Authority, in 2011 (subsequently annulled by the Brussels Court of Appeal), and € 37,4 million euros by the Belgian Competition Authority in 2012 for an abuse of dominant position. In the Nordzucker case, two German sugar producers were prosecuted by the Austrian Competition Authority for a breach of EU and Austrian competition law by engaging in a cartel based on illegal information exchange about the sugar market in Austria. The German authority had previously found the breach of EU and German competition law based on the same facts and imposed a fine of 195,5 million euros on one company.

Prohibiting double jeopardy emerges as a supra-conventional standard of procedure and such protection is envisaged. Examples include Article 50 of the Charter, Article 4§1 of the additional protocol N°7 of the European Convention on Human Rights, Article 14-7 of the United Nations Pact on Civil and Political Liberties, as well as Article 54 of the application Convention of the Schengen Treaty. However, the material content of this principle has been applied inconsistently under European law (see, e.g. , cases C-373/14P Toshiba and C-524/15 Menci). The Bpost and Nordzuker judgments have confirmed a wider application of the principle of no double jeopardy. As per Article 52(1) of the Charter, the ne bis in idem principle may be overridden, exceptionally, only if the decisions in question (i) respect the essential legal principles; (ii) are strictly necessary; and (iii) respond to objectives of general interest.

The CJEU has held that a company may also be punished for an infringement of competition law where, on the same facts, it has already been the subject of a final decision for failure to comply with sectoral rules. However, such double punishment is subject to the following cumulative conditions:

  1. There are clear and precise rules that make it possible to predict which acts or omissions are liable to be subject to such duplication;
  2. There is coordination between the two competent authorities;
  3. The two sets of proceedings are conducted in a sufficiently coordinated manner within a proximate timeframe; and
  4. The overall penalties imposed must correspond to the gravity of the infringements.

Similarly, the CJEU did not oppose to the possible establishment of a competition law infringement in one Member State where the conduct occurred, even when the same conduct has already resulted in a final decision in another Member State. The duplication of proceedings based on the territorial scope can only be pursued where the same facts have anticompetitive objects or effects in the relevant Member States. In other words, the second Member State cannot base its infringement decision on anticompetitive object or effect in the first Member State. The companies that have participated in a national leniency program and have consequently not been fined in the first Member State can still benefit from the protection against double jeopardy – as it is not a prerequisite for the protection that they have been subject to a fine.

Should the authorities not adhere to the above conditions, they risk infringing the prohibition against double jeopardy.

It will ultimately be for the national courts to decide whether, in the Bpost and Nordzuker cases, the authorities did not infringe the ne bis in idem principle and the companies can rely on it as defence. The CJEU guidance imposes some limits on unlimited prosecutions by the authorities based on the same facts. At the same time, the protection against double jeopardy is not a blanket defence that the companies can rely on.

On March 8, 2022, the Competition and Markets Authority (CMA) published its decision to accept commitments offered by Gridserve (the owner of The Electric Company Limited) and three motorway service area (MSA) operators: Roadchef, MOTO and Extra.  This article considers the background and implications of the CMA’s enforcement action against the parties.

Continue Reading The CMA Investigation into EV Chargepoint Operators and Net Zero

Since launching its review programme in September 2019, the Commission has been working to update its Horizontal Guidelines and two sets of block exemptions, R&D and Specialisation, both of which are due to expire on December 31, 2022. The Commission consulted widely (to which we contributed) and has just published proposed drafts of each in a final round of consultations, which will expire on April 26, 2022. Alongside this programme, the Commission is also updating the Verticals Block Exemption and the Market Definition Guidelines, for which further drafts are expected in the coming months.

Continue Reading Commission Moves Closer to Finalizing New Horizontal Guidelines and R&D and Specialization Block Exemptions

On January 18, 2022, Lina Khan, the Chair of the Federal Trade Commission (FTC), and Jonathan Kanter, the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice (DOJ), held a joint press conference to announce that the agencies would be requesting comments on considerations for new horizontal and vertical merger guidelines. The comments will help inform the agencies in drafting new guidelines for vertical and horizontal mergers. Once the new guidelines are drafted, the agencies plan to hold another comment period, with the goal of finalizing the guidelines by the end of 2022.

The agencies last revised the Horizontal Merger Guidelines in 2010. The Vertical Merger Guidelines were more recently updated in 2020. After the change in administration following the 2020 election, President Biden emphasized antitrust enforcement as a way to increase competition in the American economy. In particular, he issued an Executive Order on Competition, which, among other actions, requested that the DOJ and the FTC re-examine the vertical and horizontal merger guidelines. (For more coverage of the Executive Order on Competition, visit Steptoe’s Executive Order Tracker.) The FTC acted swiftly, voting along party lines to withdraw its approval of the Vertical Merger Guidelines due to concerns about placing too much emphasis on potential procompetitive benefits of vertical mergers. On the same day that the FTC withdrew its approval of the Vertical Merger Guidelines, the DOJ announced that it would be carefully reviewing the analytical methodology of the Vertical Merger Guidelines and would seek further comment at a later date.

That date finally arrived on January 18. Statements from both Chair Khan and Assistant Attorney General Kanter emphasized that the point of the proceeding was to modernize the guidelines to reflect new economic understanding and lessons from past mergers. They noted that while traditional merger enforcement had focused on the first prong of the Clayton Act’s prohibition of mergers that “may substantially lessen competition,” it would be important in revising the guidelines to ensure that the second prong, barring mergers that “tend to create a monopoly,” is also respected. And, in so doing, they invited comments from a wide range of interested parties, particularly those who are beyond the traditional antitrust community, such as consumers and farmers.

The agencies’ request for information (RFI) raises questions and issues that may represent a substantial shift in antitrust enforcement. Many of the questions indicate a clear skepticism for the conventional antitrust enforcement tools of analysis. For instance, the comments on efficiencies bluntly question whether the guidelines’ approach is consistent with congressional directives and case law. The questions suggest a potential shift toward expressly stating a goal of preserving small businesses, favoring non-efficiency-related social and environmental causes, and perhaps eschewing a goal of maximizing economic efficiency in favor of adopting a total welfare standard. This would be a sharp departure from the economics-based approach that has characterized the guidelines since the adoption of the horizontal guidelines of 1982.

The RFI is another indication that the Biden administration plans to take a more aggressive approach to antitrust enforcement that is a departure from the trend over the past 40 years. Several days after the RFI was issued, Assistant Attorney General Kanter explained that when the Antitrust Division “concludes that a merger is likely to lessen competition, in most situations we should seek a simple injunction to block the transaction. It is the surest way to preserve competition.” He continued: “We must give full weight to the benefits of preserving competition that already exists in a market, rather than predicting whether a divestiture will actually serve to keep a market competitive. That will often mean that we cannot accept anything less than an injunction blocking the merger – full stop.” Assistant Attorney General Kanter stated that while it is easier for courts to “carry forward a test, even when that test was developed at a time when markets functioned in radically different ways,” that “it’s our job as enforcers to ensure that courts engage with markets as they actually exist.” This tough talk raises expectations that new guidelines will be paired with aggressive action, including more litigated challenges to deals.

So, what does the RFI request? In a relatively short document, the agency seeks public input on 15 categories of issues. The RFI begins by asking if the current guidelines accurately reflect the text of the second prong of Section 7 of the Clayton Act, which prohibits mergers that “may … tend to create a monopoly.” In this regard, the RFI asks for input on how rollups and tendencies toward concentration in an industry should be evaluated. The RFI asks what kinds of evidence should be considered and whether the guidelines have focused too much on certain types of evidence while placing insufficient reliance on evidence such as head-to-head competition between the merging parties. The RFI also questions whether predictive quantification has been overemphasized. The RFI suggests that evidence of the harms of past mergers may help to identify characteristics that could be used going forward to anticipate adverse outcomes from transactions.

With regard to coordinated and unilateral effects, the RFI specifically requests information about developments in research and practice, reflecting a potential interest in research that breaks from traditional antitrust analysis. The RFI also asks whether the current guidelines adequately identify mergers that are presumptively unlawful or if revisions are necessary to help identify the characteristics of mergers that may be anticompetitive. In what would be a substantial departure from the approach adopted first in the 1982 merger guidelines, the RFI also asks whether there are alternatives or replacements for HHI-based metrics.

In line with some current economic thinking, the RFI asks whether markets need to be precisely defined. The RFI appears skeptical of many of the traditional tools for market definition, even asking if the exercise of defining a market masks the potential for dynamic competition to be lost. The RFI also seeks comment on whether the guidelines should move away from a quantitative-based approach to market definition in favor of considering more qualitative evidence.

With regard to potential and nascent competition, the RFI asks for comments on how the agencies can assess whether a nascent competitor could grow into a plausible competitor and what degree of probability should be sufficient to condemn a proposed acquisition. In connection with remedies, the RFI seeks comment on whether the remedies process should be formalized and deadlines erected for remedy proposals, which would likely strengthen the agencies’ hands when negotiating remedies with merging parties.

Finally, the RFI asks for comments on several additional issues, including monopsony power and labor markets, innovation and IP, digital markets, and special characteristics markets. The RFI ends with a series of fundamental questions about barriers to firm entry, efficiencies, and failing and flailing firms claim.

Comments are due on or before March 21, 2022.

A federal district court in Colorado last week handed the Department of Justice (DOJ) its second victory in its fight to criminally prosecute allegedly unlawful labor agreements, holding that alleged non-solicitation (or “no poach”) agreements among the defendants and their competitors constituted per se violations of Section 1 of the Sherman Act.

The ruling is the DOJ’s second major win in this space in two months. We wrote in December about United States v. Jindal, in which the DOJ prevailed in the face of a motion to dismiss its first-ever Sherman Act wage-fixing prosecution. Now, in United States v. DaVita,1 the DOJ has again enhanced its ability to tamp down on anticompetitive behavior in labor markets, although based on a slightly different analysis.

The Alleged Conspiracies

The DaVita indictment centers on the conduct of dialysis provider DaVita Inc. and former DaVita CEO Kent Thiry. As alleged, DaVita and Thiry carried out three conspiracies, each in violation of Section 1 of the Sherman Act. First, they conspired to “allocate senior-level employees,” agreeing with competitor Surgical Care Affiliates — itself under indictment on similar charges2 — that the two companies would “not solicit[] each other’s senior level employees across the United States.” The conspiracy centered around a meeting at which the terms of the no-poach agreement were discussed; instructions to certain executives and employees that they refrain from soliciting senior employees from co-conspirator companies; compliance monitoring, which required that senior employees notify their employer before seeking employment with a co-conspirator company; efforts to remedy violations of the no-poach agreement; and generally abiding by the no-poach agreement.

The second and third conspiracies were similar, but were not limited to senior employees and involved other unnamed competitors. These conspiracies again consisted of an initial meeting, an agreement, the implementation of a compliance mechanism, and a general practice of not poaching competitors’ employees in conformance with the agreement.

The Court’s Finding of an Alleged Per Se Offense

At the center of the defendants’ motion to dismiss was the question of whether the parties’ alleged agreement not to solicit each other’s employees was a per se offense under the Sherman Act, or a violation that required a “rule of reason” analysis, which requires the court to weigh the restraint’s competitive harms against its competitive benefits, examining a variety of factors including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint’s history, nature, and effect.3

In determining whether per se treatment was appropriate, the DaVita court applied its own three-step test, drawn in part from United States v. eBay, Inc.4 The first step requires the court to determine whether the conduct fits into a category that has been found to warrant per se treatment, such as price fixing, bid rigging, or horizontal market allocation. If not, step two requires the court to consider whether to create a new category of per se unreasonableness. If the conduct neither fits an existing category nor warrants the creation of a new one, the rule of reason applies. But if per se treatment is appropriate under either step, the court must then consider, under the third step, whether the conduct was a naked restraint on trade (that is, its only purpose was to stifle competition) or ancillary to a procompetitive purpose.5

The court held that the alleged conspiracies constituted per se violations under the first step — that is, the conduct fit into an existing category of per se unreasonableness. It began its analysis by noting that horizontal market allocation agreements — agreements between competitors at the same level of the market structure to allocate a market to minimize competition — “are traditionally subject to per se treatment under Section 1 of the Sherman Act.”6 Moreover, agreements “allocating or dividing an employment market” are horizontal market allocation agreements.7 Accordingly, as long as the alleged no-poach agreements were agreements allocating or dividing an employment market, they would constitute per se violations of the Sherman Act. The court did not reach step three (whether the conduct was naked or ancillary) because the defendants did not raise the issue in their motion to dismiss.

The defendants resisted the court’s conclusion on several grounds, which the court serially rejected.

First, the defendants argued that the allegations amounted to a non-solicitation agreement, not a horizontal market allocation agreement. The court flatly rejected this argument, noting that the two were not mutually exclusive.8

Second, the defendants argued that the indictment lacked sufficient facts to support the allegation that they allocated the market. Citing the factual allegations summarized above, the court held that the indictment adequately pleaded an agreement to allocate the market.9

Third, the defendants argued that there is no precedent supporting the argument that non-solicitation agreements are subject to per se treatment. Like the court in Jindal, the DaVita court rejected this argument, stating that given the broad sweep of Section 1 of the Sherman Act, “as violators use new methods to suppress competition by allocating the market or fixing prices these new methods will have to be prosecuted for a first time.”10 The DaVita court also relied heavily on an analogous but 35-year old out-of-circuit decision, United States v. Cooperative Theatres of Ohio, Inc., in which the Sixth Circuit held that horizontal allocation of the market for customers, in the form of a non-solicitation agreement among competitors, constituted a per se violation of Section 1 of the Sherman Act.11

Fourth, the defendants argued that there is no precedent that would warrant a finding that non-solicitation agreements should be made into a new category subject to per se treatment. The court held that this argument was ultimately academic; the agreements at issue, as horizontal market allocation agreements, fit into an existing category of per se unreasonableness.12

Fifth, the defendants argued that because non-solicitation agreements have not conclusively been found subject to per se treatment, per se treatment is not warranted here. In response, the court noted that while non-solicitation agreements are not inherently problematic, “agreements that nakedly allocate the market are per se unreasonable because they would almost always be an unreasonable restraint on trade.”13 In other words, because the conduct at issue here was a horizontal market allocation agreement, it was subject to per se treatment.

Finally, the court rejected the defendants’ argument, also raised in Jindal, that finding a “per se rule to agreements like those alleged here for the first time would violate defendants’ right to ‘fair warning’ under the Due Process Clause.”14 In doing so, it pointed out that there was nothing novel about treating horizontal market allocation agreements as per se illegal; and “[t]he fact that defendants allegedly allocated the market in a novel way — by using a non-solicitation agreement — does not matter.”15

But…A Warning to the Government

Although the motion was decided in the government’s favor, the court went out of its way to address DOJ’s “apparent assertion” that non-solicitation agreements are always horizontal market allocation agreements and, therefore, per se unreasonable.[16] As the court noted, there are precedents involving no-hire agreements that were not subjected to per se treatment because they did not allocate the market,[17] and the same reasoning could apply to non-solicitation agreements. As a result, it will not suffice for the government to allege merely that a defendant entered into a non-solicitation or no-hire agreement; any such agreement must be market-allocating to qualify as a per se violation.

By contrast, in Jindal, the court held that “fixing the price of labor, or wage fixing, is a form of price fixing and thus illegal per se,”18 leaving little or no room for defendants facing wage-fixing charges to argue that certain wage-fixing agreements should not be subjected to per se treatment.

DOJ Is Likely to Continue Using Antitrust Prosecutions to Police Labor Markets

As we noted in December, the DOJ is aggressively pursuing wage-fixing and no-poach prosecutions. Beyond the rulings in Jindal and DaVita, motions to dismiss making similar arguments are pending in United States v. Surgical Care Affiliates, LLC and SCAI Holdings, LLC and United States v. Hee (a wage-fixing and no-poach case). Moreover, two new indictments — one against executives and managers of Pratt & Whitney and various suppliers alleging a no-poach conspiracy in United States v. Patel,19 and the other against four managers of home health care agencies alleging a wage-fixing and no-poach conspiracy in United States v. Manahe20 — are beginning to make their way toward trial. We should expect to see similar motions filed in those cases, given that these issues remain ones of first impression in those courts. Although the motions in those cases are likely to yield similar outcomes, as the DaVita decision’s warning to DOJ on proof of market allocation makes clear, the analytical paths these courts take toward their rulings may differ, and could offer nuanced differences that help guide the defendants’ trial defenses.

Finally, the slowly forming consensus among courts that no-poach and wage-fixing agreements are per se offenses subject to criminal prosecution further underscores the importance of companies having effective compliance that involves legal, human resources, and executives at the highest level, promptly and thoroughly investigating allegations of no-poach/wage-fixing agreements when they arise, and considering availment of the Antitrust Division’s Leniency Program, where appropriate.

We will continue to monitor developments in these cases and in no-poach/wage-fixing enforcement efforts more broadly.

 

Endnotes

1 1:21-cr-00229, 2022 WL 266759 (D. Colo. Jan. 28, 2022).

2 Indictment, United States v. Surgical Care Affiliates, LLC and SCAI Holdings, LLC, No. 3:21-cr-00011 (N.D. Tex. Jan. 5, 2021).

3 DaVita, 2022 WL 266759, at *2.

4 968 F. Supp. 2d 1030 (N.D. Cal. 2013).

5 DaVita, 2022 WL 266759, at *4.

6 Id. at *3.

7 Id.

8 Id. at *4.

9 Id. at *5.

10 Id.

11 845 F.2d 1367 (6th Cir. 1988).

12 DaVita, 2022 WL 266759, at *7.

13 Id. at *15.

14 Id. at *8.

15 Id. at *9.

16 Id. at *8.

17 See, e.g.Bogan v. Hodgkins, 166 F.3d 509, 515 (2d. Cir. 1999) (holding that a no-hire agreement, as alleged, was not a per se violation because there was no geographic or market allocation).

18 Jindal, 2021 WL 5578687, at *5 (cleaned up).

19 3:21-mj-01189 (D. Conn., filed Dec. 7, 2021).

20 2:22-cr-00013 (D. Me., filed Jan. 27, 2022).

‘State aid’ is the term we would hear or read on a daily basis during the Brexit negotiations. The media described it as one of the ‘make or break’ issues which neither party, the UK or the EU, was willing to find the middle ground to land on. Now a year later since the end of the transition period, the term ‘subsidy’ has replaced ‘State aid’ in the context of public authorities awarding financial assistance.

This note considers what has been happening to the UK’s subsidy control post-Brexit and further provides an overview of the UK’s proposed new subsidy control regime.

Continue Reading The UK’s Proposed New Subsidy Control Regime: Will it Work?

The US Department of Justice announced last month that it is requesting public comment on an updated draft policy statement on standards-essential patents (SEP). The December 6, 2021 draft statement was issued pursuant to the Executive Order on Promoting Competition in the American Economy on July 9, 2021. The draft statement seeks to modify a policy statement issued in December 2019, which modified a previous policy statement issued in January 2013.  Each policy statement provides guidance on when and how SEP holders who have voluntarily committed to make available a license for a patent on fair, reasonable, and non-discriminatory (FRAND) terms should be entitled to relief for violations.

The December 2021 draft statement steps back from the 2019 statement, which favored SEP holders and suggests a return toward the more neutral position of the 2013 guidance. It also outlines a framework to guide parties in their negotiation of FRAND terms.

  • On injunctive relief: the 2019 statement stated that “[a]ll remedies available under national law, including injunctive relief and adequate damages, should be available for infringement of standards-essential patents subject to a F/RAND commitment.” However, the 2021 draft statement shifts away from injunctive relief and states that “monetary remedies will usually be adequate to fully compensate a SEP holder for infringement.” Similarly, the 2021 draft statement declares: “[w]here a SEP holder has made a voluntary F/RAND commitment, the eBay factors, including the irreparable harm analysis, balance of harms, and the public interest generally militate against an injunction.”
  • On good-faith negotiation: the 2019 statement stated that SEP holders and potential licensees were “encouraged” to engage in good-faith negotiation to agree on FRAND terms. However, the 2021 draft statement is more emphatic and states that parties “should” engage in good-faith negotiation.
  • On guidance to conduct good-faith negotiation: the 2021 draft statement goes further and provides guidance on points for the parties to consider in pursuit of good-faith negotiation, including:
  • An SEP holder engaged in good-faith negotiation should alert a potential licensee of the specific SEPs it believes will be or are being infringed and make a good-faith FRAND offer.
  • A potential licensee should consider the offer and respond within a commercially reasonable amount of time in a manner that advances the negotiation by: (1) accepting the offer; (2) making a good-faith FRAND counteroffer; (3) raising specific concerns about the offer’s terms, including with respect to validity and infringement of the patents; (4) proposing that issues be resolved by a neutral party; or (5) requesting that the SEP holder provide more specific information on the offer.
  • In response, an SEP holder should respond to the potential licensee within a commercially reasonable amount of time in a manner that advances the negotiation by: (1) accepting the counteroffer; (2) addressing concerns about the original offer and making a new good-faith FRAND offer; (3) responding to a request for information; or (4) proposing that issues be resolved by a neutral party.

The DOJ is seeking comments before February 4, 2022. Comments can be submitted here: https://www.regulations.gov/document/ATR-2021-0001-0001

Gun-jumping can occur when parties fail to fulfil the two obligations laid down by the European Merger Regulation No 139/2004 (EUMR). Article 4(1) of the EUMR sets out the obligation to notify the European Commission (Commission) of a concentration with an EU dimension before implementation. Article 7(1) sets out the obligation to stand still until the Commission declares such a concentration compatible with the internal market.

But would it be possible for parties to breach both obligations concurrently regarding the same transaction and thus to be fined doubly? The General Court answered in the affirmative in one of the most anticipated anti-gun-jumping cases.

Continue Reading Gun Jumping: The General Court’s Ruling