United States: April – June 2018 Update
The second quarter of 2018 ushered in a trial defeat for the US Department of Justice (DOJ) and the beginning of a new era at the Federal Trade Commission (FTC). In June, Judge Richard J. Leon of the US District Court for the District of Columbia denied the DOJ’s requested injunction of the AT&T/Time Warner acquisition. The case marked the first litigated vertical challenge by the Antitrust Division in nearly 40 years. DOJ filed a notice of appeal of the district court’s decision. At the FTC, four new commissioners were sworn in in May, with a fifth to join upon the approval of current commissioner Maureen Ohlhausen to the US Court of Federal Claims. With the transition nearly complete, new FTC Chairman Joseph Simons announced plans to re-examine and modernize the FTC’s approach to competition and consumer protection laws, possibly charting a new course for FTC antitrust enforcement.
EU: April – June 2018 Update
In this quarter, we saw two significant developments concerning the issue of gun-jumping. First, the Court of Justice of the European Union (CJEU) clarified the scope of the gun-jumping prohibition, ruling that a gun-jumping act can only be regarded as the implementation of a merger if it contributes to a change in control over the target. Second, the European Commission (EC) imposed a €124.5 million fine on Altice for having breached the notification and the standstill obligations enshrined in the EUMR by gun-jumping. The EC also issued two clearance decisions following Phase II investigations in the area of information service activities and the manufacture of basic metals.
Snapshot of Events (Legislation/Agency Remarks/Speeches/News, etc.)
- FTC Vacancies Filled
In late April, the Senate confirmed five nominees to the FTC. Joseph Simons was sworn in as Chairman of the Commission on May 1 and Noah Joshua Phillips, Kelly Slaughter and Rohit Chopra have joined Mr. Simons as commissioners. Christine Wilson has also been confirmed, but will only take a seat if current commissioner Maureen Ohlhausen’s nomination as a federal judge on the US Court of Federal Claims is confirmed.
- 2017 HSR Report Shows 12% Increase in Notifications
In April, the FTC and DOJ released the agencies’ 40th Annual HSR Report, providing HSR Premerger Notification data for fiscal year 2017. The agencies reviewed 2,052 HSR reportable transactions during fiscal year 2017, a 12% increase from 2016. The agencies undertook 39 merger challenges in fiscal year 2017 (21 by the FTC and 18 by the DOJ). Of the 21 merger enforcement actions brought by the FTC in in fiscal year 2017, 14 resulted in consent orders, six resulted in the transaction being abandoned or restructured, and the FTC initiated administrative and federal court litigation against one transaction. Of the 18 merger enforcement actions brought by the DOJ, nine resulted in settlement, seven resulted in the transaction being abandoned or restructured, and two cases were litigated. Overall, the percent of transactions in which the agencies issued a Second Request decreased from 3% in 2016 to 2.6% in 2017.
- FTC Chairman Simons Announces Competition and Consumer Protection Hearings
In June, newly appointed FTC Chairman Joseph Simons announced that the FTC will host a series of multi-day, multi-part public hearings in September 2018 to consider whether broad-based changes in the economy, evolving business practices, new technologies and international developments warrant adjustments to competition and consumer protection law, enforcement priorities and policy. The events will be known as the “Hearings on Competition and Consumer Protection in the 21st Century.”
- House Passes Bill to Change FTC’s Merger Reviews
In early May, the US House of Representatives passed a bill aimed at aligning the DOJ’s and FTC’s merger processes, called the Standard Merger and Acquisition Reviews Through Equal Rules, or SMARTER, Act. The bill would eliminate the FTC’s ability to challenge a merger administratively and would require challenges to be conducted in federal court instead. In addition, the bill would require the FTC to satisfy the same standard that the DOJ is subject to for an injunction. The bill will now be considered by the Senate.
- DOJ and FTC Continue to Emphasize That Behavioral Remedies Will Only Be Accepted in Unique Circumstances
In the Bayer/Monsanto transaction, the DOJ required a structural fix to address vertical issues. In addition, for one horizontal overlap where the EC accepted a license, the DOJ instead required the parties to divest the business. In the Northrop Grumman/Orbital transaction, the FTC accepted a behavioral remedy to address a vertical issue, but publicly stated that a behavioral remedy was only appropriate because of the unique nature of the defense industry and the DOD’s monitoring of the remedy.
- DOJ Announces Initiative to Terminate “Legacy” Antitrust Judgments
As part of its broader initiative to decrease its involvement in behavioral remedies, the DOJ announced an initiative in April to terminate outdated antitrust judgments. In 1979, the DOJ adopted the general practice of including sunset provisions that automatically terminate judgments, usually 10 years from entry. Despite that measure, nearly 1,300 “legacy” judgments remain open. The DOJ will review all of its legacy judgments to identify those that no longer serve to protect competition, and has already assigned each judgment to a DOJ attorney. The DOJ will post each case it deems obsolete on a public website, allowing the public 30 days for comment. Following the comment period, if the DOJ still believes termination is appropriate, it will seek to terminate the judgment by filing a motion with the appropriate court.
- Deputy Director General for Mergers Mosso Sets Out Requirements for Remedies in Innovation Cases
During his speech at the ABA Section of Antitrust Law Spring Meeting in Washington on April 12, Deputy Director General for Mergers Carles Esteva Mosso described the EC’s current approach to the assessment of innovation concerns. Mosso noted that the EC’s interventions based on innovation concerns remain relatively rare by pointing out that innovation concerns were identified only in 10 out of 73 cases in which the EC intervened between 2015 and 2017. He also stressed that “it would not be appropriate to establish any legal or economic presumption that a horizontal merger will have a negative impact on innovation.” In setting out the requirements for remedies in innovation cases—which are “almost invariably structural”—he noted that “[a]s a rule of thumb, the transfer should encompass a standalone R&D organisation/unit.”
- German Chancellor Merkel Calls for an Overhaul of EU Competition Rules to Help Build Global Champions
On June 6, German Chancellor Angela Merkel briefed Members of the European Parliament from her own European People’s Party on her priorities to reform the EU. In particular, she called for an overhaul of the EU’s competition rules. She noted that “[w]e need global champions. But our European competition law does not help us sufficiently to build them.” Two days later, Siemens and Alstom notified the proposed merger of their rail operations to create a European champion.
Snapshot of Enforcement Actions