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Antitrust M&A Snapshot | Q4 2023

Topics covered in this edition:

  • New Merger Guidelines Released
  • FTC Focused on Pharmaceutical Companies
  • FTC Targets “Moat-Building” Mergers
  • Fifth Circuit Fuels FTC’s Vertical Mergers Agenda
  • FTC Losing Streak Reverses During the Fourth Quarter
  • Ex post Review in the Merger Control Sphere Occurring More and More Frequently

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Antitrust M&A Snapshot | Q2 2023

Topics covered in this edition:

  • FTC Unveils Proposal Detailing Significant Changes to Hart-Scott-Rodino Act Merger Notifications
  • Assa Abloy Settlement Raises Questions on Litigating the Fix and DOJ Consent Decrees
  • Pharmaceutical Industry Remains in Regulators’ Crosshairs
  • “Whole of Government” Competition Mandate Can Impact Deals the FTC and DOJ Do Not Challenge
  • FTC’s Constitutionality Comes Under Fire—Again
  • Divergent Viewpoints in Video Games Sector: Microsoft’s Takeover of Activision Blizzard
  • New Merger Simplification Package from the EC

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Cartel Corner | July 2023

In the first half of 2023, antitrust enforcers remained remarkably busy both in the United States (US) and across the European Union (EU). The US Department of Justice’s (DOJ’s) Antitrust Division (Division) and the Federal Trade Commission (FTC) have continued their aggressive and novel effort to drag antitrust enforcement into the labor markets. The DOJ Procurement Collusion Strike Force (PCSF) has pursued its crackdown on antitrust and fraud involving government procurement with a number of recent cases. And DOJ has pushed the boundaries under Section 2 of the Sherman Act—both by revitalizing the criminal provisions of the law and by pursuing “attempts” to monopolize criminally. The European Union has also kept the pressure on those doing business overseas, imposing significant fines in recent matters and upgrading its online leniency program to make it easier for companies to report wrongdoing.

In this installment of Cartel Corner, we examine this continued aggressiveness toward antitrust enforcement. While these government enforcement efforts have not always been successful, they have nonetheless reframed the landscape for many companies and individuals. What was once thought of as a civil antitrust violation at worst—or no violation at all—is now often pursued criminally. And antitrust enforcers are speaking in more strident tones as they attempt to remake, in certain ways, the way companies do business in the United States and abroad.

Whether antitrust enforcers are ultimately successful remains to be seen. Nonetheless, the trend is real, and it is one that all companies should be prepared to address in the weeks and months to come.

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Vertical Agreements & Restriction of Competition by Object: What’s New in Europe?

On June 29, 2023, the Court of Justice of the European Union (CJEU) delivered a preliminary ruling in the Super Bock Bebidas vs. Autoridade da Concorrência case (C-211/22) on the questions referred by the Tribunal da Relaçao de Lisboa (Lisbon Court of Appeal). To some extent, the recent judgement is not particularly noteworthy or innovative, as it mainly applies well-established EU competition law principles prevalent through existing case law. However, the Super Bock case marks a significant step forward by introducing these principles for the first time in the context of vertical price-fixing agreements.

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EU Competition Law: New Horizontal Block Exemption Regulations and Horizontal Guidelines

The European Commission recently adopted and published the revised Research and Development Block Exemption Regulation and Specialisation Block Exemption Regulation, together referred to as the Horizontal Block Exemption Regulations (HBERs), accompanied by the revised Horizontal Guidelines (HGLs). The adoption of the new HBERs and HGLs comes after the conduct of a similar review process and the adoption of the Vertical Block Exemption Regulation and Vertical Guidelines in May 2022. This revised horizontal package seeks to provide businesses with up-to-date guidance to help them self-assess the compatibility of their horizontal cooperation agreements with EU competition law.

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The Potential Benefits of New EU Merger Control Rules

The European Commission recently adopted and published a package to simplify the procedures for reviewing concentrations under the EU Merger Regulation. The goal of the package is to simplify merger review procedures, with a targeted 25% reduction on reporting requirements.

In this Law360 article, McDermott Partners Jacques Buhart, Stéphane Dionnet and Frédéric Pradelles examine the new regulations and analyze their impact on businesses and advisers.

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EU Commission Adopts New Merger Simplification Package

On April 20, 2023, the EU Commission (Commission) adopted and published a package to simplify the procedures for reviewing concentrations under Regulation (EC) 139/2004 of January 20, 2004 (European Union Merger Regulation – EUMR). This package includes a set of three materials comprising (i) a revised Merger Implementing Regulation (Implementing Regulation), (ii) a Notice on Simplified Procedure (Notice), and (iii) a Communication on the Transmission of Documents to the Commission (Communication). The new notification forms (Form CO, Short Form CO, Form RS and Form RM) are also provided as Annexes to the Implementing Regulation.

The core objective of the package is to simplify merger review procedures, with a targeted 25% reduction on reporting requirements. This evolution is more than welcome, especially in light of the very recent Regulation on foreign subsidies distorting the internal market (FSR) which recently entered into force, imposing additional burdens on M&A transactions. We discuss this recent entry into force of the new FSR in our last article, available here.

This new package intends to bring significant benefits for businesses and advisers in terms of easing preparatory work and related costs. Relieving this administrative burden lying on the parties to a concentration should hopefully speed up the approval process by the Commission. The new package will apply from September 1, 2023.

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Antitrust M&A Snapshot | Q1 2023

Topics covered in this edition:

  • Christine Wilson Resigns as FTC Commissioner
  • FTC/Department of Justice Horizontal Merger Guidelines Delayed
  • Agencies Maintain Focus on Private Equity, Especially in Healthcare
  • Continuing a Trend: FTC Loses Challenge to Meta’s Acquisition of Within
  • Agencies Continue to Challenge Transactions Outright Rather than Negotiate Settlements
  • New Regulatory Burden: The EU Foreign Subsidies Regulation Enters into Force
  • A New Route for Complainants: ECJ Towercast Ruling Confirms Non-Notifiable Acquisition Can Be Abuse of Dominant Position
  • CMA’s New Leadership Team Focuses on Digitalisation and Supply Chain Issues Impacting Consumers

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European Competition Review 2022

This Review provides legal counsel and their teams easy reference guidance on essential EU competition law developments covering key areas of law and policy. Topics covered include:

  • Cartels & Restrictive Agreements
  • Abuse of Dominant Position
  • Merger Control
  • State Aid
  • Legislative and Policy Developments

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Antitrust M&A Snapshot | Q4 2022

Topics covered in this edition:

• DOJ Sees First Merger Win After String of Losses
• FTC Brings Suit Against Microsoft/Activision
• Updated Merger Guidelines Expected Soon
• Merger Fees Changing
• The EC Launches a Consultation on Its Draft Revised Market Definition Notice
• UK Orders a Chinese Firm to Divest Its 83% Controlling Stake in a Welsh Semiconductor Wafer Factory Based on National Security Concerns

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McDermott Will & Emery Juriste Nabil Lakhal contributed to this newsletter. 




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