As reflected in the December 2023 merger guidelines, the Federal Trade Commission and the US Department of Justice have changed the way they think about out-of-market effects, i.e., competitive effects that arise outside the relevant market.
In this Law360 article, Lisa Rumin and Anthony Ferrara unpack this new approach, which was prominently demonstrated during the JetBlue Airways-Spirit Airlines merger, and provide practical considerations on the implications for firms contemplating mergers and acquisitions.
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.
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.
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.
When it comes to antitrust criminal enforcement, 2023 will be remembered as the year when the US Department of Justice’s (DOJ) Antitrust Division redefined and tested the outer boundaries of its authority. This report looks back at the key events from the DOJ’s year in criminal antitrust enforcement.
Here’s a glimpse of what’s inside:
Despite four straight losses and a voluntary dismissal in labor market cases, the DOJ remains undeterred in bringing additional criminal wage-fixing and no-poach suits.
DOJ’s Procurement Collusion Strike Force secured several guilty pleas and stiff penalties in 2023 and will most likely continue pursuing aggressive investigative and litigation strategies moving forward.
The nearly decade-long investigation of the generic drug industry appears to be ending after the DOJ recently resolved and dismissed the remaining cases.
Deputy Attorney General Lisa Monaco highlighted cybersecurity, tech and national security as areas of heightened risk and thus heightened scrutiny, so corporations in these markets should take heed of the DOJ’s emphasis on corporate compliance in 2024.
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.
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.
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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