Yesterday, the FTC announced certain changes in response to the continuing “massive surge” in HSR filings. See Reforming the Pre-Filing Process for Companies Considering Consolidation and a Change in the Treatment of Debt | Federal Trade Commission (ftc.gov).
Bevin Newman is a partner in the Antitrust and Competition Practice Group in the firm's Washington, D.C. office.
* Reprinted with permission from Global Competition Review. The full version of GCR’s US Courts Annual Review – Edition 2, published in July 2021, is available here.
The United States Supreme Court decided two antitrust cases for October Term 2020.…
As it continues to grapple with the COVID-19 pandemic, the healthcare sector will face increased antitrust scrutiny from the Biden administration, with the Federal Trade Commission (the “FTC”) and Department of Justice, Antitrust Division (the “DOJ”) (together the “Agencies”) as the Agencies ramp up their reviews not just of “horizontal” transactions (i.e., deals between competitors), but also of “vertical” transactions (i.e., deals that combine market participants at different levels of the healthcare industry, such as payors, hospitals, and physician practices).
Continue Reading Vertical Deals in Healthcare: Key Antitrust Takeaways for Private Equity Firms
- Lower Thresholds For HSR Filings
On February 1st, 2021, the Federal Trade Commission announced revised, lower 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 had not been lowered since 2010.
Continue Reading Lower Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced
* Reprinted with permission from Global Competition Review. The full version of GCR’s US Courts Annual Review, published in July 2020, is available here.
The United States Supreme Court’s single antitrust case of the 2019 term, Apple, Inc v. Pepper upheld the long-standing and often criticized direct purchaser rule in the realm of sales through iPhone apps and other online sales platforms. The direct purchaser rule, established through the Supreme Court’s decisions in Hanover Shoe v. United Shoe Machinery Co and Illinois Brick Co v. Illinois limited standing to “the overcharged direct purchaser, and not others in the chain of manufacture or distribution.” In Apple v. Pepper, the Court grappled with these concepts in the virtual retail space where the class plaintiffs alleged that Apple’s 30 percent fee on sales of iPhone applications through its App Store represents a monopoly overcharge that should be recoverable by purchasers of the apps. The Court considered whether the developers of iPhone applications, rather than the consumers were more directly harmed by Apple’s alleged monopoly.
Continue Reading U.S. Courts Annual Review: Supreme Court
On April 4, 2020, the Department of Justice issued a business review letter allowing collaboration among five distributors of personal-protective equipment (“PPE”), oxygen, and medications. This is the first business review letter issued under the expedited review procedure for streamlining pandemic-related public health efforts issued jointly by the Federal Trade Commission and DOJ on March 24, 2020 (as previously reported here and here). The DOJ turned the request for review around in only five days, but offered few new insights into how the agencies might weigh public-health considerations against potential competitive harms.
Continue Reading DOJ Issues First Business Review Letter Approving Competitor Collaboration In Response To COVID-19
Make no mistake, the antitrust laws remain in full effect. The leadership of the Antitrust Division of the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) have made clear that these enforcers “stand ready to pursue civil violations of the antitrust laws, which include agreements between individuals and business to restrain competition through increased prices, lower wages, decreased output, or reduced quality as well as efforts by monopolists to use their market power to engage in exclusionary conduct.” The DOJ also promised to vigorously monitor and prosecute any criminal violations of the antitrust laws, “which typically involve agreements or conspiracies between individuals or businesses to fix prices or wages, rig bids, or allocate markets.” In fact, the DOJ has drafted proposed legislation to allow more time for its criminal cases by tolling the statute of limitations for criminal antitrust violations for no less than 180 days and until 60 days after termination of the national emergency declared by the President on March 13, 2020.
Continue Reading Speeding Up and Slowing Down Antitrust Reviews – How the Federal Antitrust Agencies Are Responding to the COVID-19 Crisis
In response to COVID-19, the FTC’s Premerger Notification Office (PNO) just announced several changes for all Hart-Scott-Rodino (HSR) filings going forward. While these changes have been described as temporary, no specific end date has been identified.
- Hard copy HSR filings will no longer be accepted, until further notice
- No HSR filings whatsoever may be submitted on Monday, March 16.
- Starting at 8:30 a.m. on Tuesday, March 17, HSR filings must be submitted through a new, temporary e-filing system. That system is not yet operational. It will require parties to upload documents to a secure FTP site.
- While this temporary e-filing system is in place, early termination will not be granted for any filing.
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 have not closed by the effective date will be subject to the new thresholds.
Continue Reading Higher Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced
Virtually all significant antitrust cases these days have an international component. Markets now are worldwide. Consequently, one of the most frequently litigated—and most important issues—is the extent of U.S. jurisdiction. Which sales are subject to trebling in a U.S. court? Which sales must be pursued elsewhere? Frequently, the key statute is the Foreign Trade Antitrust Improvements Act (FTAIA). The resulting litigation, unfortunately, has not resulted in clear rules or signposts. And, the cases are highly fact-specific. The facts matter.
Continue Reading Navigating Dangerous Shoals: The Murky but Critical Territorial Boundaries of U.S. Antitrust Jurisdiction
On May 7, 2019, The Governor of the State of Washington signed into law Substitute House Bill 1607 (“HB 1607”) – a first-of-its-kind premerger notification requirement covering healthcare transactions closing on or after January 1, 2020. HB 1607 is a timely reminder that state attorneys general have not hesitated in recent years to enforce both federal and their own state antitrust laws when a transaction poses local anticompetitive concerns.
Continue Reading The State of Washington Has Another Arrow in its Healthcare Antitrust Quiver: State Healthcare Antitrust Enforcement in the Spotlight