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Heard at the 2024 Antitrust Law Section Spring Meeting: Part II

The American Bar Association Antitrust Law Section’s annual Spring Meeting concluded on April 12. The annual Spring Meeting featured updates from federal, state and international antitrust enforcers and extensive discussion on priority antitrust issues affecting various industries. In this article, we highlight takeaways from the final two days of the Spring Meeting.

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Heard at the 2024 Antitrust Law Section Spring Meeting: Part I

The American Bar Association Antitrust Law Section’s annual Spring Meeting is underway in Washington, DC. The annual Spring Meeting features updates from federal, state and international antitrust enforcers and extensive discussion on priority antitrust issues affecting various industries. In this article, we highlight the key takeaways from the first portion of the Spring Meeting.

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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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The Fix Is In – Key Learnings From Recent Vertical Merger Challenges

Vertical mergers are inherently more difficult for the government to litigate than horizonal mergers. After not litigating a vertical merger case since the 1970s, the Federal Trade Commission and the US Department of Justice have recently tried several matters.

In this Westlaw Today article, Jon Dubrow, Stephen Wu, Matt Evola and Bailey Sanders discuss key insights from these cases and provide useful guidance for companies contemplating such transactions.

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FTC and DOJ: Preserve Your Chats!

  • The Federal Trade Commission (FTC) and the US Department of Justice (DOJ) are updating their standard preservation notices and instructions for responding to all manner of discovery (e.g., second requests, voluntary access letters, compulsory process, etc.). The update will alert parties to the steps that must be taken to preserve communication from popular business collaboration tools and “ephemeral messaging platforms” like Slack, Microsoft Teams and Signal.
  • These platforms are typically set to delete communication data automatically and may lack appropriate capabilities for preserving and extracting data even when a preservation notice is issued. While these tools have become central features in the modern business landscape, the Agencies’ announcement is designed to clearly set out the expectation that companies and individuals will adhere to preservation requirements. Parties could be subject to criminal obstruction of justice charges if they fail to comply.
  • Highlighting the very serious concern these tools raise in the DOJ’s view, Manish Kumar, Deputy Assistant Attorney General for the DOJ’s Antitrust Division, asserted that ephemeral messaging platforms are “designed to hide evidence.”

WHAT HAPPENED

  • On January 26, 2024, the DOJ and FTC (the Agencies) announced an update to their preservation notices and instructions for responding to all manner of discovery to “address the increased use of collaboration tools and ephemeral messaging platforms in the modern workplace” and “reinforce longstanding obligations requiring companies to preserve materials during the pendency of government investigations and litigation.”
  • The Agencies recognize that ephemeral chat messaging is becoming an increasingly important feature of the modern business landscape, and they have sought to collect ephemeral messaging data in the past. However, because these platforms are typically set to delete messages automatically and may lack clear solutions for preserving data, the Agencies have run into dead ends trying to collect such data in prior cases. Indeed, Manish Kumar, Deputy Assistant Attorney General for the DOJ’s Antitrust Division stated that “these updates to our legal process will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages.”
  • This new preservation language will be included in all DOJ and FTC preservation letters, second request specifications, voluntary access letters, compulsory legal process and grand jury subpoenas going forward.
  • While the new language changes are a continuation of the Agencies’ existing preservation policies, they will highlight parties’ obligations with respect to ephemeral messaging data specifically, potentially making it easier for the Agencies to seek sanctions and other recourse against companies who fail to preserve such data.
  • Indeed, the Agencies’ announcement cites a prior case where civil spoliation sanctions resulted from a target’s failure to properly preserve ephemeral messaging data. Likewise, the FTC has also signaled its willingness to refer cases to the DOJ Antitrust Division’s Criminal Liaison Unit for criminal obstruction charges in certain cases.

WHAT THIS MEANS

  • The Agencies have recognized in recent cases that relevant business communications that used to happen over email are [...]

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FTC Announces Annual Merger Notification Threshold and Filing Fee Adjustments

On January 22, 2024, the Federal Trade Commission (FTC) announced increased jurisdictional thresholds, increased filing fee thresholds and filing fee amounts for merger notifications made pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).

Merger Notification Threshold Changes

The HSR Act compels transacting parties to notify the FTC and US Department of Justice (DOJ) of their intent to consummate a transaction if such a transaction meets or exceeds certain jurisdictional thresholds, barring an exemption. The adjusted thresholds apply to all transactions that close on or after the effective date, which will be 30 days after the notice is published in the Federal Register.

The FTC amends the merger notification jurisdictional thresholds on an annual basis based on changes in the gross national product (GNP).

  • The base statutory size-of-transaction threshold, the lowest threshold requiring notification, will increase to $119.5 million.
  • The upper statutory size-of-transaction test, requiring notification for all transactions that exceed the threshold (regardless of the size-of-person test being satisfied), will increase to $478 million.
  • The statutory size-of-person lower and upper thresholds (which apply to deals valued above $119.5 million but not above $478 million) will increase to $23.9 million and $239 million, respectively.

Merger Filing Fee Increases

Following the passage of the Merger Filing Fee Modernization Act, the FTC is required to revise filing fee thresholds and filing fee amounts each year. Filing fee threshold changes are based on the percentage change in GNP, and filing fee amounts are based on the percentage increase, if any, in the Consumer Price Index (CPI). As with the merger notification thresholds, the filing fee threshold and filing fee amount adjustments take effect 30 days after publication of the notice in the Federal Register.

The revised filing fee thresholds and filing fee amounts are provided in the table below.




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New FTC, DOJ Merger Guidelines Create Challenges and Opportunities

The US Federal Trade Commission (FTC) and US Department of Justice Antitrust Division (DOJ) issued their updated Merger Guidelines on December 18, 2023. These guidelines represent a significantly more enforcement-oriented approach than the prior guidelines, and they largely follow the contours of draft guidelines released in July 2023. Companies should be aware of the Merger Guidelines and their implications as they formulate strategies for assessing potential merger and acquisition options.

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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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Proposed Merger Guidelines Outline Fundamental Change of Approach to Merger Investigation and Enforcement

Mergers and acquisitions will continue to face strong headwinds at the Federal Trade Commission and the US Department of Justice under new proposed Merger Guidelines released on July 19, 2023. The Proposed Guidelines embody the antitrust agencies’ aggressive posture toward merger enforcement under the Biden administration. This On the Subject highlights the most significant changes in the Proposed Guidelines and what steps companies contemplating mergers and other transactions should take in the face of these changes.

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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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