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
Mergers
The FTC Updates Size of Transaction Thresholds and Filing Fees for Premerger Notification Filings
By Michael Weiner, John Kavanagh, Damon Kalt, Lee Berger & Travis West on
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
By Michael Weiner, John Kavanagh, Damon Kalt, Lee Berger & Travis West on
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.…
Gun Jumping Remains a Hot Topic – Beware!
By Charles Whiddington & Zanda Romata on
Posted in Jurisdiction - EU, Mergers
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…
Revising the Horizontal and Vertical Merger Guidelines: A New Approach for Antitrust?
By Michael Weiner, John Kavanagh & Travis West on
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
By John Kavanagh & Michael Weiner on
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…
Gun Jumping: The General Court’s Ruling
By Charles Whiddington & Yumiko Takahashi on
Posted in Jurisdiction - EU, Mergers
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.…
Antitrust Update: Developments at the FTC and DOJ
By John Kavanagh, Michael Weiner & Travis West on
Posted in Litigation, Mergers
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
By Michael Weiner & Travis West on
Posted in Mergers
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…
Attack of the Killer Acquisitions
By Danyal Arnold & Charles Whiddington on
Posted in Jurisdiction - EU, Mergers
A ‘killer acquisition’ is an acquisition of a potential rival whilst they are still in the early stages of their development, whose turnover is small or zero, in order to eliminate them as a possible source of future competition. Such acquisitions often fly under the radar of EU and national merger regimes which are usually only engaged when the turn-over of a target exceeds a certain threshold. They tend to be a particular problem in digital services where companies try to expand their market share whilst charging nothing or very little to begin with and pharmaceutical companies whose new techniques or medicines may take years to develop and not yield revenue for a significant period of time.
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