With digital platforms present in every aspect of our lives, it was only a matter of time before regulators started to think about how to manage the new issues and competition concerns they raise. Leading platforms have grown in size and market power raising concerns for regulators about dominance and market foreclosure. Continue Reading
- 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
California Penal Code § 396 prohibits price gouging in California during a state of emergency. California enacted a few amendments to Section 396 that are effective now. As explained in more detail below, among other things, the amendments close potential loopholes relating to e-commerce, sales of new products, and the relevant benchmark date for pre-emergency prices. Continue Reading
The ever increasing market power and often criticised conduct of data driven platforms is not new, but lately the efforts to tackle these appear to have taken a decisive turn. We are now on the verge of new rules and tools to tackle the competition issues arising with the tech giants.
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 ANPRM, the FTC expressed its strong interest in making sure the Rules are “as current and relevant as possible,” and observed that certain of the Rules, some of which have not been changed since they were first promulgated in 1978, may need updating. The ANPRM contains more than forty pages of questions soliciting information to help determine the need for “potential future amendments to numerous provisions” of the Rules. Continue Reading
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 from certain investment entities, such as investment funds and master limited partnerships, by including “associates” in the definition. Continue Reading
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
As State aid measures granted by EU Member States continue to surge in the aftermath of the COVID-19 outbreak and ongoing pandemic, the European Commission (“Commission”) has turned to subsidies coming from non-EU countries.
On 17 June, the Commission announced that it had adopted a consultative White Paper which sets out proposed new legal tools to deal with the distortive effects caused by foreign subsidies in the European Single Market. With this, it opened a public consultation seeking input from stakeholders on the proposals set out in the White Paper. The public consultation will be open until 23 September 2020.
With the benefit of some distance since the issuance of this White Paper, we assess the proposal and the responses to it. Continue Reading
* 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
On June 22, 2020, Assistant Attorney General Makan Delrahim, head of the Antitrust Division at the Department of Justice, and Jay Clayton, Chairman of the Securities and Exchange Commission, signed a Memorandum of Understanding (“MOU”) concerning “Cooperation with Respect to Promoting Competitive Conditions in the Securities Industry.” Continue Reading