Category Archives: Government Merger and Civil Conduct Investigations

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Is There an HSR Sea Change on the Horizon? Advance Notice Seeks Information on Possible Amendments to Numerous Provisions of the HSR Rules

At the same time as it issued its notice of proposed rulemaking expanding the definition of “person,” the Federal Trade Commission (“FTC”) issued an advance notice of proposed rulemaking (“ANPRM”) to request information related to seven topics “to help determine the path” for future amendments to the HSR Rules.  In explaining the reasons for the … Continue Reading

Tell Me More – Antitrust Agencies to Demand More Information from Investment Funds

The Federal Trade Commission (“FTC”) recently issued a notice of proposed rulemaking to amend the premerger notification rules (the “Rules”) that implement the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) to change the definition of “person” and create a new exemption.  The new definition of person is specifically designed to obtain more information … Continue Reading

DOJ Antitrust Division Releases New Merger Remedies Manual

On September 3, 2020, the DOJ’s Antitrust Division released its Merger Remedies Manual.  The manual provides important guidance on what DOJ considers to be adequate solutions to addressing competitive issues in M&A deals challenged by DOJ.  Several key points are identified below.… Continue Reading

Maybe the FTC Can’t Take That to the Bank: The Supreme Court’s Decision in Liu v. SEC and Its Implications for the FTC’s Ability to Seek Equitable Monetary Relief

On July 9, 2020, the U.S. Supreme Court granted petitions for certiorari in FTC v. Credit Bureau Center and AMG Capital Management, LLC v. FTC, cases that question the Federal Trade Commission’s authority to demand equitable monetary relief such as restitution and disgorgement under Section 13(b) of the FTC Act, which permits courts to issue … Continue Reading

High Risk of Second Requests in the Cannabis Industry

The cannabis industry faced heightened antitrust scrutiny from the Department of Justice (DOJ) in 2019.  There were public reports regarding several “Second Requests” seeking information about potential cannabis transactions.  Second Requests are a part of expensive and time-consuming antitrust investigations typically issued in the approximately 2 percent of transactions that present significant anticompetitive concerns.  To … Continue Reading

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

Higher Thresholds For HSR Filings On January 28, 2020, 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). The new thresholds will become effective on February 27, 2020. Acquisitions that … Continue Reading

Axon Sues FTC Over Use of Administrative Adjudication in Merger Investigations

On January 3, 2020, Axon Enterprises Inc. filed a complaint against the Federal Trade Commission in the United States District Court for the District of Arizona challenging the constitutionality of the FTC’s administrative process.  Axon’s complaint marks the latest salvo in a decades-long critique of the disparity between FTC and Department of Justice merger enforcement … Continue Reading

HSR and Antitrust Considerations for Private Equity Firms in M&A Transactions

An increasing number of M&A transactions each year involve private equity firms. Like any other transaction, the parties in private equity deals must be cognizant of the filing requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the substantive requirements of the Clayton Act § 7, which prohibits transactions that may “substantially . . … Continue Reading

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

Higher Thresholds For HSR Filings On January 26, 2018, 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 and will be effective thirty days after publication in the Federal Register. Publication … Continue Reading

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

1. Higher Thresholds For HSR Filings On January 19, 2017, 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 and will be effective thirty days after publication in the Federal Register. … Continue Reading

Antitrust Agencies Issue Guidance To HR Professionals Regarding Hiring and Compensation Decisions

The U.S. Antitrust Agencies (the Antitrust Division of the Department of Justice and the Federal Trade Commission) recently issued a document entitled “Antitrust Guidance For Human Resource Professionals” intended to alert HR professionals to potential antitrust violations involving hiring and compensation decisions. The Guidance states that firms that compete to hire or retain employees are … Continue Reading

FTC Stands Down in Latest Head-to-Head Battle Between Federal and State Oversight of Healthcare Collaborations

In what will undoubtedly be seen by all interested parties as a significant setback in the Federal Trade Commission’s active opposition to potentially anticompetitive healthcare collaborations, the FTC voted unanimously on Wednesday to dismiss its challenge to Cabell Huntington Hospital’s acquisition of St. Mary’s Medical Center – two hospitals serving patients in the Huntington area … Continue Reading
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