Government Contractors Facing Increased Antitrust Scrutiny

Procurement Collusion Strike Force

The Procurement Collusion Strike Force, formed by the Department of Justice in 2019, is ramping up enforcement pressures against government contractors. The Strike Force brings together the DOJ Antitrust Division criminal offices, state Attorneys General, and federal agencies such as the Department of Defense and Federal Trade Commission.[1] The Strike Force is an effort to crack down on anticompetitive activities in public procurement, which the DOJ views as particularly susceptible to the costs of collusive activity.[2] The Department was already devoting significant resources to public procurement crimes,[3] and the Strike Force represents an intensified, all-hands approach to enforcement. Continue Reading

Updates to DOJ Leniency Policy Further Complicate Decisions to Seek Antitrust Immunity; Some Suggestions from the Field

By Michael W. Scarborough on April 26, 2022 Posted in Criminal / DOJ

Earlier this month, on the eve of the ABA Antitrust Spring Meeting, the Department of Justice Antitrust Division rolled out significant updates to its Leniency Program, most readily discernible through an augmented, plain-language set of 82 Frequently Asked Questions, as well as the Division’s updated Leniency Policies and Procedures and Model Corporate Conditional Leniency Letter. Continue Reading

Executives Beware: DOJ Antitrust Division is Taking a Hard Look at a Wide Spectrum of Potential Criminal Violations

By A. Joseph Jay III and Thomas Dillickrath on March 7, 2022 Posted in Criminal / DOJ

On March 2, Deputy Assistant Attorney General Richard Powers laid out a significant and aggressive criminal enforcement agenda for the Antitrust Division of the Department of Justice. While speaking at the the ABA National Institute on White Collar Crime in San Francisco, CA, Powers began his remarks by noting that the Division’s Criminal Section currently had 18 indicted cases against 10 companies and 42 individuals, including 8 CEOs or Presidents. DAAG Powers also noted that the Section had 146 open grand jury investigations – more than at any time in the last thirty years and “expect[ed] to stay busy this year and beyond.”

Sixth Circuit Questions Efficacy of State “Certificate of Need” Laws, Question Whether Reduces Competition

By David Garcia and Joseph Antel on March 7, 2022 Posted in Healthcare / Antitrust

The Sixth Circuit Court of Appeal recently voiced skepticism of Kentucky’s Certificate of Need (“CON”) laws while simultaneously ruling that they met the Fourteenth Amendment’s “rational basis” test.^[1]

Treasury Department Recommends Antitrust Reform in Alcohol Markets

By Leo Caseria, John Carroll and Katie Daw on February 28, 2022 Posted in Consumer Protection

On February 9, the Treasury Department issued a report analyzing competition in the US alcohol industry (defined as beer, wine, and spirits), which outlined several proposed reforms aimed at improving competition in the sector.

Looking Ahead to Tougher Merger Guidelines and Enforcement

By Michael W. Scarborough and Skyler Hicks on February 3, 2022 Posted in Government Merger and Civil Conduct Investigations

Although the number of corporate mergers surged during President Biden’s first year in office, all signs point to a tougher regulatory environment for deals going forward.

In 2021, $5.8 trillion changed hands as a result of corporate mergers across the globe.[1] This 64 percent increase over 2020 far surpassed the previous annual record,[2] and now the Biden Administration appears to be taking steps toward fulfilling the President’s goal of ramping up antitrust enforcement.[3] One such measure includes taking a more critical approach when evaluating proposed mergers, and federal agencies have already filed several high-profile investigations.[4]

Higher Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced

By Malika Levarlet on January 24, 2022 Posted in Antitrust Counseling and Compliance, Merger Control

Higher Thresholds For HSR Filings

On January 24, 2022, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in Gross National Product (GNP) and after last year’s atypical decrease they have again increased.

Antitrust Scrutiny Heating Up in Oil and Gas Industries

By Thomas Dillickrath, John Carroll and Katie Daw on December 15, 2021 Posted in Antitrust Counseling and Compliance

President Biden recently wrote a letter to FTC Chair Lina Khan urging the Commission to immediately investigate potential anticompetitive behavior in the oil and gas sector. The President noted that gas prices have been rising, while the costs faced by oil and gas companies themselves have decreased. Concerned that the two largest oil and gas companies in the country are set to double their net income over 2019 while the gap between the price of unfinished gasoline and the price at the pump is increasing, he called on the FTC to “bring all of the Commission’s tools to bear if you uncover any wrongdoing.”

Senate Zeros in on Big Tech with Latest Antitrust Reform Bill

By Michael W. Scarborough and Kevin Costello on November 2, 2021 Posted in Antitrust Counseling and Compliance

Last month, Senators Amy Klobuchar (D-MN) and Chuck Grassley (R-IA) fired the latest and perhaps most high-profile legislative salvo against Big Tech to date – the proposed American Innovation and Choice Online Act. This Senate bill would update the antitrust laws with the specific goal of reigning in large technology companies. This comes after a year of high-profile hearings in which the Senate Judiciary Subcommittee on Competition Policy, Antitrust and Consumer Rights, under Klobuchar’s direction, has investigated the conduct of Apple, Google, and other big tech companies.

Back to the “Good Old Days”: FTC Announces Return to Prior Merger Approval Regime

By John Carroll, Leo Caseria, Malika Levarlet and Joseph Antel on November 1, 2021 Posted in Government Merger and Civil Conduct Investigations

FTC announces that its merger enforcement orders will once again require prior approval before the subject firm can make a future acquisition affecting any relevant market for which a violation was alleged.

On October 25, 2021, the FTC issued a Prior Approval Policy Statement (the “Statement”) reinstating its prior practice of routinely requiring merging parties subject to a Commission order to obtain prior approval from the FTC before closing any future transaction affecting any relevant market for which a violation was alleged. The Policy Statement implements the Commission’s July 21, 2021 vote rescinding its 1995 Policy Statement on Prior Approval and Prior Notice Provisions. The 1995 Statement rescinded the FTC’s long-standing practice of including prior approval and prior notice provisions in Commission enforcement orders concerning mergers.

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