Antitrust enforcement has been heating up over the last few years in several areas – notably in healthcare and labor.[1] As the antitrust climate intensifies and spreads, private equity (PE) firms are starting to feel the heat, finding themselves the focus of increased antitrust scrutiny. Significantly, antitrust enforcement and litigation risks are moving from the portfolio companies to the PE firms themselves. Three areas of heightened risk stand out: interlocking directorates, roll-ups, and PE divestiture buyers.[2]…

Continue Reading Hot Antitrust Enforcement Climate Reaches Private Equity

The United States is broadening the scope and diversity of its energy mix at a rate and to an extent not seen in a century, if ever. The changes underway provide both important opportunities and critical challenges for owners seeking to repurpose existing assets in a market governed by overlapping federal, state and local regulations.…

Continue Reading Six Key Considerations for Transitioning Existing Fossil Fuel Transport, Storage and Electricity Generation Assets to New Uses

On April 11, 2023, the Antitrust Division of the United States Department of Justice (the “DOJ”) issued a public comment on four proposed rules promulgated by the United States Securities and Exchange Commission (“the SEC”). The four proposed rules target national market system (“NMS”) stocks by (1) expanding disclosures of order execution information (“Rule 605 Proposal”);[1] (2) amending minimum pricing increments, access fees, and transparency requirements (“Regulation NMS Proposal”);[2] (3) enhancing competition for certain orders (“Order Competition Proposal”);[3] and (4) establishing a duty of best execution for certain market participants (“Best Execution Proposal”).[4] The DOJ’s comment warns the SEC of the possible negative interactions between the four proposed rules and the antitrust dangers of issuing the rules all at once.…

Continue Reading DOJ Antitrust Division Cautions SEC on Proposed Equity Market Restructuring

The Federal Trade Commission (the “FTC”) and Department of Justice, Antitrust Division (the “DOJ”) (together the “Agencies”) continue to carry out the Biden Administration’s stated mission to reinvigorate antitrust enforcement to “Promote Competition in the American Economy.”…

Continue Reading Restrictive Covenants in Real Estate: Next Antitrust Enforcement Target?

On April 14, 2023, in a decision involving appeals regarding two separate agency enforcement actions, the Supreme Court unanimously held that respondents in such actions may raise certain constitutional challenges outside of the administrative proceedings. Axon Enterprise, Inc. v. Federal Trade Commission.…

Continue Reading Supreme Court Holds That Respondents in Agency Enforcement Actions May Raise Constitutional Challenges Outside of Administrative Proceedings

On April 3, 2023, the Department of Justice (the “DOJ”) filed a civil complaint against Activision Blizzard Inc. (“Activision”) alleging that the “competitive balance tax” constituted an unreasonable restraint of trade under Section 1 of the Sherman Act,[1] and entered into a proposed consent decree (a binding settlement) that, if approved by a court, would bar the gaming company from imposing a “tax” against its esports leagues that exceed spending limits on player compensation.…

Continue Reading No More Games: Activision Settles with DOJ Over Esports Compensation

The Department of Justice (DOJ) lost its third jury trial in its mission to secure criminal convictions against companies and executives accused of labor-side antitrust violations on March 22, 2023, when a jury in Maine acquitted four home healthcare staffing executives of violating Section 1 of the Sherman Act. In United States v. Manahe, the DOJ charged Faysal Kalayaf Manahe, Yaser Aali, Ammar Alkinani, and Quasim Saesah with entering into an approximately two-month conspiracy between April and May 2020 not to hire each other’s caretakers and to fix caretaker wages.[1] After the district court declined to dismiss the indictment, holding the DOJ had successfully alleged a per se conspiracy to fix wages and allocate employees, the case proceeded to a two-week trial. At trial, defendants—all immigrants from Iraq, many of whom served as translators for U.S. forces there—admitted that they discussed setting wage levels and refraining from hiring each other’s employees, and even drafted an agreement with signature lines that outlined the terms of defendants’ discussions.[2] Defendants argued that they never reached an agreement in violation of Section 1 because the draft agreement was never signed. Defense counsel emphasized in opening statements that in defendants’ culture, “when dealing with business matters . . . the only way to confirm a commitment is to put it into a formal written contract.” Given the verdict, it appears the jury agreed.…

Continue Reading DOJ Loses Third Consecutive Antitrust Labor Trial

Following up on an earlier blog post outlining the United States Federal Trade Commission’s (“FTC”) increased regulatory action against non-compete agreements in employment contracts,[1] a view across the pond reveals that European competition authorities follow these developments with interest – the prospect of groundbreaking new developments is more limited, though.…

Continue Reading Non-Compete and No-Poach Agreements: Towards Convergence of the US and EU Approaches?

On March 9, the FTC unanimously voted to block the proposed merger between the nation’s largest provider of home mortgage loan origination systems (LOS) and other key lender software tools, and its top competitor that offers the same services. In its complaint, the FTC alleged that one company owns the country’s dominant LOS platform, while the other company owns and operates the second-largest platform. In a press release announcing the administrative complaint, the FTC stated that the deal “would drive up costs, reduce innovation, and reduce lenders’ choices for tools necessary to generate and service mortgages.”…

Continue Reading FTC Seeks to Block Deal Between Top Mortgage Loan Technology Providers

What Happened?

On Friday, February 3, the Department of Justice, Antitrust Division (the “DOJ”) announced its withdrawal of three policy statements on health care antitrust enforcement: (1) The Department of Justice and Federal Trade Commission Antitrust Enforcement Policy Statements in the Healthcare Area (Sept. 15, 1993); (2) The Department of Justice and Federal Trade Commission Statements of Antitrust Enforcement Policy in Healthcare (Aug. 1, 1996); and (3) The Department of Justice and Federal Trade Commission Statement of Antirust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011) (together, the “Healthcare Statements”). It has been reported that the Federal Trade Commission (the “FTC”), which shares antitrust enforcement authority with the DOJ (together the “Agencies”), intends to withdraw the Healthcare Statements as well. Assuming the FTC follows the DOJ’s lead, the withdrawal of the Healthcare Statements may be the most significant antitrust enforcement development under the Biden Administration to date and is likely the most significant healthcare antitrust development in decades.…

Continue Reading Department of Justice Withdraws Key Healthcare Antitrust Policy Statements

1. Higher Jurisdictional Thresholds For HSR Filings

On January 23, 2023, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The jurisdictional thresholds are revised annually based on the change in Gross National Product (GNP).…

Continue Reading Higher Jurisdictional and Filing Fees Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced