On September 21, 2023, the Federal Trade Commission (FTC) sued Welsh, Carson, Anderson & Stowe (WCAS) and U.S. Anesthesia Partners, Inc. (USAP), in the Southern District of Texas, alleging the two companies “[e]xecuted a multi-year anticompetitive scheme to consolidate anesthesiology practices in Texas, drive up the price of anesthesia services provided to Texas patients, and boost their own profits.”…

Continue Reading FTC Sues Private Equity Firm and Anesthesiology Practice for Antitrust Violations

On August 16, 2023, the Federal Trade Commission (“the FTC”) marked its first enforcement action of the prohibitions on interlocking directorates under Section 8 of the Clayton Act in over 40 years. Section 8 prohibits an officer or director of one firm from simultaneously serving as an officer or director of a competing firm under most circumstances.[1] The FTC accepted for public comment a consent order conditioning the 5.2 billion dollar cash‑and-stock deal between two rival natural gas producers on preventing “entanglements between the two companies and the exchange of confidential, competitively sensitive information.” Under the consent order, Quantum Energy Partners (“Quantum”) representatives may not serve on EQT Corporation’s (“EQT”) Board of Directors and must divest its EQT shares. The consent order also unwinds a pre-existing joint venture between the two entities and imposes additional restraints to protect competition.…

Continue Reading Antitrust Enforcement Agencies Continue to Target Interlocking Directorate Arrangements

As generative AI becomes an increasingly integral part of the modern economy, antitrust and consumer protection agencies continue to raise concerns about the technology’s potential to promote unfair methods of competition. Federal Trade Commission (“the FTC”) Chair Lina Khan recently warned on national news that “AI could be used to turbocharge fraud and scams” and the FTC is watching to ensure large companies do not use AI to “squash competition.”[1] The FTC has recently written numerous blogs on the subject,[2] signaling its intent to “use [the FTC’s] full range of tools to identify and address unfair methods of competition” that generative AI may create.[3] Similarly, Jonathan Kanter, head of the Antitrust Division at Department of Justice (“the DOJ”), said that the current model of AI “is inherently dependent on scale” and may “present a greater risk of having deep moats and barriers to entry.”[4] Kanter recently added that “there are all sorts of different ways to deploy machine learning technologies, and how it’s deployed can be different in the healthcare space, the energy space, the consumer tech space, the enterprise tech space,” and antitrust enforcers shouldn’t be so intimidated by artificial intelligence and machine learning technology that they stop enforcing the laws.[5]…

Continue Reading AI Under the Antitrust Microscope: Competition Enforcers Focusing on Generative AI from All Angles

On 12 July 2023, the new EU Foreign Subsidies Regulation (“FSR”) started applying to all non-EU and EU companies and all sectors of the economy. FSR filled a regulatory gap which existed since 1958. The European Commission (the “Commission”) is vested by FSR with wide investigative and decisional powers to prevent any distortions in the EU internal market caused by “foreign subsidies” (“FS”) granted by non-EU countries.…

Continue Reading The EU Foreign Subsidies Regulation: New Rules for All Companies Active in the EU

On July 19, 2023, the Federal Trade Commission and Department of Justice jointly published long-anticipated proposed merger guidelines (the “Proposed Merger Guidelines”), which had been expected since President Biden issued an Executive Order Promoting Competition in the American Economy in the summer of 2021. According to the agencies, the Proposed Merger Guidelines “build upon, expand, and clarify” the prior guidance,[1] to keep up with “modern” market realities.[2] In contrast to the previous versions, the Proposed Merger Guidelines cover both horizontal and vertical mergers. They also cite case law for the first time.[3] Reflecting the Biden Administration’s views on federal antitrust merger enforcement, the Proposed Merger Guidelines substantially expand the types of competitive harm the agencies consider grounds for challenging a transaction under Section 7 of the Clayton Act (which prohibits mergers where the effect is “substantially to lessen competition” or “to tend to create a monopoly”).[4]…

Continue Reading A Big Deal: FTC and DOJ Issue Long-Awaited New Draft Merger Guidelines

The FTC announced today a notice of proposed rulemaking (“NPRM”)[1] proposing extensive revisions to both the rules that implement the Hart-Scott-Rodino Antitrust Improvements Act (the “Act” or “HSR Act”), and the Premerger Notification and Report Form (the “Form”) that merging parties must submit under the Act. The NPRM would also implement the Merger Filing Fee Modernization Act of 2022. …

Continue Reading Notice of Proposed Rulemaking: FTC Proposes to Redesign and Dramatically Expand the Scope of the HSR Act Filing Process

Today, Connecticut Governor Ned Lamont signed into law HB6669, “An Act Protecting Patients and Prohibiting Unnecessary Health Care Costs” (“the Act”), which seeks to reduce the costs of health care services for Connecticut residents. The Act is extensive and is aimed at increasing competition in the health care market, heightening price transparency, and reducing prescription drug costs. We have summarized key provisions of the Act below.…

Continue Reading Connecticut Governor Signs Health Care Legislation to Reduce Costs and Increase Competition

It has been another busy year for the Department of Justice’s Procurement Collusion Strike Force (PCSF). Formed in 2019, the Department of Justice created the PCSF, a joint law enforcement effort to combat antitrust crimes and related fraudulent schemes that impact government procurement, grant, and program funding at all levels of government – federal, state and local. The PCSF is a constellation of partnerships among the Antitrust Division of the U.S. Department of Justice, multiple U.S. Attorneys’ Offices around the country, the Federal Bureau of Investigation (FBI), and the Inspectors General for multiple federal agencies working together to crack down on unlawful anticompetitive activities in the public procurement process.…

Continue Reading Government Contracting Companies Beware: DOJ’s Procurement Collusion Strike Force is Global, Growing, and Going Strong

On June 2nd, 2023, the Federal Trade Commission (“the FTC”) announced modifications to its in-house adjudicative proceedings. Under these new rules, an administrative law judge (“ALJ”) presiding over an administrative hearing can only issue “recommended” decisions that are reviewed automatically by the FTC Commissioners (the “Commission”). The Commission, during their now-automatic review, may affirm the recommended decision in full or reject the decision, in whole or in part, and issue its own decision adopting different findings of fact or conclusions of law. Before the Commission acts on an ALJ’s recommended decision, it must provide the parties with an opportunity to submit a brief that states any exceptions to the decision.…

Continue Reading FTC Modifies Role of Administrative Judges Amid Heightened Agency Scrutiny

The subject of corporate leniency as a tool for combating criminal conduct seems to be top of mind for federal prosecutors. In the last few months, the Deputy Attorney General, Lisa Monaco, and senior enforcers in the Criminal Division, Assistant Attorney General Kenneth A. Polite, Jr. and Deputy Assistant Attorney General Lisa H. Miller, have announced and reinforced the Division’s commitment to its new Corporate Enforcement Policy, which rewards timely self-reporting and other forms of “extraordinary” cooperation in the form of declinations and deferred prosecution agreements.[i]…

Continue Reading Recent Antitrust Leniency Program Revisions Examined in ABA’s 2023 Edition of the Antitrust Cartel Leniency and Sentencing Handbook

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