The Department of Justice (DOJ) announced last week the advent of a new safe harbor for companies that discover wrongdoing by the acquired business in the course of an M&A transaction. Buyers hoping to take advantage of this avenue for leniency would be well-advised to conduct thorough diligence and act quickly to report any wrongdoing they uncover, as the potential upsides for those who do so may be considerable in light of the DOJ’s new policy.Continue Reading DOJ Announces Mergers & Acquisitions Safe Harbor Policy
Lindsey Collins is special counsel in the Antitrust and Competition Practice Group in the firm's Washington, D.C. office.
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, to keep up with “modern” market realities. 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. 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”).Continue Reading A Big Deal: FTC and DOJ Issue Long-Awaited New Draft Merger Guidelines
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
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. 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.Continue Reading Hot Antitrust Enforcement Climate Reaches Private Equity