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What antitrust enforcement will look like during a second Trump administration is, like antitrust law, complicated. Notions that Republicans are pro-business and therefore will take a laissez-faire approach to antitrust enforcement are outdated and simplistic. During Trump’s first term, antitrust enforcement was far from moribund, blending traditional Republican preferences for deregulation with a populist skepticism toward Big Tech and market concentration generally. This anomalistic meeting of progressive Democrats and conservative Republicans in the antitrust space even garnered a mash-up moniker – the “Khanservaties” – a group of conservative Republicans including Missouri Senator Josh Hawley and erstwhile Attorney General nominee and former Florida Representative Matt Gaetz, who praised Biden-appointed Federal Trade Commission (FTC) Chair Lina Khan. Vice President-elect J.D. Vance also provided backhanded praise for Khan, stating, “I look at Lina Khan as one of the few people in the Biden administration that I think is doing a pretty good job.” Continue Reading Antitrust During Trump 2.0: It’s Complicated

The Department of Justice’s Antitrust Division (“Antitrust Division”) recently updated its Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations guidance document (“Antitrust Compliance Guidance”). Corporate counsel and compliance officers should seriously consider these updates when crafting and implementing an antitrust compliance program.Continue Reading Key Takeaways from the DOJ Antitrust Division’s Updated Compliance Guidance: It’s Not Just Criminal Anymore

Leading up to the U.S. presidential election this November, our Antitrust & Competition team continues to offer insights into what antitrust enforcement may look like under the next presidential administration. As we look forward to the next four years, we should also look back on antitrust enforcement under previous recent administrations. Much has been made of the more aggressive and public stance on antitrust enforcement under the Biden administration. The Federal Trade Commission (“FTC”) and the Department of Justice, Antitrust Division (the “DOJ”) (together the “Agencies”) have put forth several significant policy changes and proposed rules, including new merger guidelines and a proposed ban on noncompetes. All that said, at least some of the data may indicate a less radical change in antitrust enforcement under Biden as compared to Trump than the conventional wisdom suggests.Continue Reading Antitrust Under Biden: Taking a Closer Look at the Numbers

Yesterday, August 28th, the Federal Trade Commission (the “FTC”) and the Department of Justice Antitrust Division (the “DOJ”) (the “Antitrust Agencies”), together with the Department of Labor (the “DOL”) and National Labor Relations Board (the “NLRB”), signed a new agreement (the Memorandum of Understanding or “MOU”) that seeks to enhance the ability of the FTC and DOJ to investigate the impact of mergers and acquisitions on labor markets.Continue Reading U.S. Federal Antitrust Agencies Announce Cooperation Initiative with Labor Agencies in Merger Review

On June 6, 2024, California Attorney General Rob Bonta announced that he led a multistate coalition of eleven (11) state attorneys general in in submitting a comment letter (the “Comment Letter”) in response to the Federal Trade Commission, the U.S. Department of Justice, and the U.S. Department of Health and Human Services’ (together the “Agencies”) request for information regarding consolidation in healthcare by private equity. On March 5, 2024, the Agencies issued a “Request for Information on Consolidation in Healthcare Markets,” on the same day the Agencies hosted a public workshop regarding the impact of private equity investment in the healthcare system. Continue Reading California Attorney General Advocates for Greater Antitrust Enforcement in Private Equity in Healthcare

The health care industry has been a particular focus of antitrust concern in recent years, including recent policy initiatives, private equity warnings, and enforcement actions from both the Department of Justice (DOJ) and Federal Trade Commission (FTC). The new Task Force on Health Care Monopolies and Collusion (HCMC), announced this month by the DOJ, is the latest example of antitrust scrutiny on the industry.Continue Reading New DOJ Health Care Task Force Portends Continued Aggressive Antitrust Enforcement

In 2019, the Department of Justice created the Procurement Collusion Strike Force (PCSF or Strike Force), 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. As we have previously discussed,[i] the PCSF has been steadily growing its footprint and focus since its inception in November 2019. Now four years in, the Strike Force continues to add new partners at the Federal, State and global level, boasting of more than 30,000 government officials trained in detection and prosecution of procurement offenses. The Strike Force touts its growing ranks of trained eyes and ears on the ground anywhere government funds are spent. The PCSF is sending an increasingly aggressive enforcement message that should put those engaged with government contracts, federal funds, and procurement officials on high alert.Continue Reading Aggressive Procurement Collusion Enforcement Risk Remains High for 2024

On December 18, 2023, the Federal Trade Commission and Department of Justice (the “Agencies”) jointly issued Final Merger Guidelines, following a public comment period on the Proposed Merger Guidelines first issued in July. The Final Merger Guidelines update and replace the 2010 Horizontal Merger Guidelines and the rescinded 2020 Vertical Merger Guidelines. The Final Merger Guidelines kept important components from the Proposed Merger Guidelines (e.g., lower thresholds rendering certain transactions presumptively illegal, focus on cumulative effects of multiple acquisitions, etc.). Among the most significant developments from prior iterations of the merger guidelines are the adoption of a market share threshold in determining when a transaction is presumed to be illegal, expansion of the concept of vertical mergers to include mergers involving “related” products or services, and formal espousal of the current Administration’s focus on the impact of mergers on labor.Continue Reading The Wait is Over: DOJ and FTC Issue Final Merger Guidelines

Last week the Federal Trade Commission (FTC) issued a press release highlighting recent and forthcoming actions by the FTC, Department of Justice (DOJ), and the Department of Health and Human Services (HHS), which they say will further promote competition, thereby lowering costs and increasing the quality of care in the U.S. health care market. In addition to highlighting recent actions by each of the agencies (e.g., the FTC’s proposed non-compete rule), the release states that the three agencies are entering into new partnerships to increase interagency cooperation and advance a “whole-of-government” approach to protect health care competition, including:Continue Reading FTC, DOJ, and HHS Announce Interagency Initiatives to Promote Healthcare Competition

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