Yesterday (July 19, 2023), the DOJ Antitrust Division and the FTC released the long-anticipated proposed Merger Guidelines. As has also been long-anticipated, the proposed Guidelines reflect a much-stiffened enforcement philosophy. Throughout the text, the proposed Guidelines provide citations to Supreme Court cases from the 1960s and 1970s (and some even older) that will send
Michael Weiner
The FTC Updates Size of Transaction Thresholds and Filing Fees for Premerger Notification Filings
On January 23, 2023, the Federal Trade Commission (“FTC”) announced updated size-of-transaction thresholds for premerger notification (Hart-Scott-Rodino or “HSR”) filings, as well as new HSR filing fees and new de minimis thresholds for interlocking officer and director prohibitions under Section 8 of the Clayton Act.
The HSR filing thresholds, which are revised annually based on…
DOJ Blocks the Penguin/Simon & Schuster Deal: A Signature Antitrust Win for the Biden Administration
On October 31, 2022, Judge Florence Pan, now on the D.C. Circuit but sitting by designation in the District Court of the District of Columbia, delivered a “treat” to the Department of Justice (DOJ) and a “trick” to Penguin Random House by blocking its $2.18 billion purchase of rival publisher Simon & Schuster. The opinion, which was released on November 7, 2022, represents a comprehensive endorsement of the DOJ’s monopsony theory of the case and a complete rejection of the defendants’ counterarguments. After a string of defeats, the case marks the first win for the DOJ under the Biden administration in a litigated merger challenge.…
What’s Old is New Again: The FTC’s Embrace of Neglected Tools
As discussed previously, the FTC under Chair Khan has adopted an aggressive posture toward antitrust enforcement. Although the current FTC agenda draws on some powerful enforcement weapons, the leadership of the FTC believes that additional ammunition is required to reach the full extent of potential anticompetitive behavior and the harms associated with it. To…
Revising the Horizontal and Vertical Merger Guidelines: A New Approach for Antitrust?
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…
Draft Policy Statement Updates Guidance for Negotiations and Remedies for Standards-Essential Patents
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…
Ruling in No-Poach/Wage-Fixing Prosecution Opens New Antitrust Frontier
One year after the first criminal indictment for wage-fixing, a Texas federal district court has ruled that an agreement to fix wages is a per se violation of Section 1 of the Sherman Act.
While over the last century the Supreme Court and lower federal courts have developed a robust body of case law interpreting…
Antitrust Update: Developments at the FTC and DOJ
The Biden administration has made promoting competition a top priority, as reflected in President Biden’s July executive order on competition. (For a complete description of the executive order and developments in its implementation, please visit Steptoe’s Executive Order on Competition Tracker). This priority is reflected in appointments that President Biden has made to the…
The FTC Inserts More Uncertainty into the HSR Review Process
In a blog post released on August 3, 2021, FTC Bureau of Competition Acting Director, Holly Vedova, announced that, in response to “a tidal wave of merger filings,” the FTC had begun to send standard form letters “alerting companies that the FTC’s investigation remains open and reminding companies that the agency may subsequently determine that…
Biden Administration Calls for Whole-of-Government Approach to More Vigorous Antitrust Enforcement
President Biden’s unprecedented July 9, 2021, Executive Order 14036 represents a potential watershed moment in U.S. competition policy. The wide-ranging Executive Order (EO) includes 72 initiatives that aim to enforce existing antitrust laws and other consumer protection regulations, to be undertaken by at least 15 federal departments, offices, and agencies. The Biden Administration’s stated hope is that these efforts will drive down prices for consumers, increase wages for workers, and facilitate innovation.
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