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Antitrust M&A Snapshot | Q3 2020

In the United States, mergers and acquisitions appear to be bouncing back after a muted start to the year due to COVID-19. Hart-Scott-Rodino (HSR) filings in Q3 2020 were up significantly over Q2, but still down from the mergers & acquisitions (M&A) boom we saw in Q3 and Q4 of 2019. Against the backdrop of a pandemic, we also saw significant developments in the approaches taken by the Federal Trade Commission (FTC) and Department of Justice (DOJ) in reviewing proposed acquisitions. The FTC has recently announced an intention to expand its retrospective analysis of consummated mergers; DOJ has restructured its merger review operations to reflect changes in how the economy operates and to allow the regulator to further specialize its review efforts; and the regulators jointly proposed amendments to the HSR premerger notification regulations that are likely to increase the number of filings required for private equity organizations. In Europe, as a...

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Antitrust M&A Snapshot | Q2 2020

In the United States, despite requesting additional time to review pending mergers, the US antitrust agencies have continued their work through the COVID-19 pandemic. The Department of Justice (DOJ) and Federal Trade Commission (FTC) reached settlements with a number of merging parties during Q2 2020, and the FTC is proceeding to trial in several merger cases. Both the FTC and the DOJ are conducting investigational hearings and depositions via remote videoconferencing technology such as Zoom. The FTC also announced it prevented 12 deals from closing in 2020 despite the COVID-19 pandemic. Five of the transactions were blocked and another seven were abandoned due to antitrust concerns, putting the FTC on pace for one of its busiest years for merger enforcement in the past 20 years. In Europe, in light of the COVID-19 outbreak, the European Commission (EC) warned that merger control filings would likely not be processed as swiftly as usual. The EC encouraged...

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If Past is Prologue, Ramped up Antitrust Compliance is Critical

The COVID-19 pandemic has brought not only a healthcare crisis, but also one of the worst economic downturns in history. As businesses emerge from this crisis, there may be increased risk that employees may cross the line and engage in anticompetitive conduct. Therefore, it is critical that companies and individuals prepare now to ensure that antitrust compliance and, if necessary, reporting of conduct through internal hotlines are strongly encouraged. In this article, published on Bloomberg Law, our authors explore the risks associated with antitrust cartel conduct, review enforcement by government authorities following past economic crises, and outline compliance steps companies and individuals should take to minimize enforcement risks. Access the Full Article.

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Top Takeaways: Permissible Provider Collaborations During COVID-19 and Beyond

If you missed our latest webinar, enjoy the replay below and learn more as we provide highlights on competitor collaborations, avoiding violations in labor markets, provider M&A and partial acquisitions. Competitor Collaborations Antitrust compliance remains an important priority in the US. While companies have been engaged in finding creative solutions to COVID-19 challenges and regulators are expressing a willingness to be more flexible in interpreting and enforcing the law, the pandemic is not a carte blanche to engage in anti-competitive Regulators are more prone to accept collaborations limited in scope to respond to COVID-19 and its aftermath, and arrangements undertaken at the behest of or in partnership with government actors. Companies should avoid high-risk conduct such as direct exchanges of competitively sensitive Procompetitive agreements not relating to price, wages or market/product allocations remain possible. Companies should conduct an...

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Antitrust M&A Snapshot | Quarter 1 2020

In the United States, The Federal Trade Commission (FTC) and Department of Justice (DOJ) faced new issues this quarter with the unprecedented challenges brought about by the COVID-19 global pandemic. In March, the agencies made certain changes to the merger review process to accommodate businesses and counsel working remotely. However, merger reviews, challenges, trials and consents have continued as usual at both agencies despite the additional obstacles. In Europe, the European Commission (EC) also put in place special measures to ensure business continuity in the enforcement of merger control during the COVID-19 crisis. The first quarter of 2020 also saw the United Kingdom’s official departure from the European Union, which has consequences on the enforcement of EU competition law in the United Kingdom. Access the full issue.

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FTC and DOJ Issue Joint Antitrust Statement Regarding COVID-19 and Competition in Labor Markets

The COVID-19 pandemic has placed additional stressors on labor markets, particularly for healthcare workers and essential employees. While recognizing that employers, recruiters and staffing agencies may need—and be allowed to—cooperate in unprecedented ways to address current needs, on April 13, 2020, the US Department of Justice and US Federal Trade Commission issued a joint statement reinforcing their vigilance against collusion or anticompetitive conduct in labor markets and their willingness to pursue criminal and civil actions against violators. Access full article.

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DOJ Issues Antitrust Guidance on Competitor Collaboration to Combat COVID-19

The US Department of Justice (DOJ) Antitrust Division issued a business review letter that underscores the flexibility of the US antitrust regulators towards competitor collaborations aimed at increasing the supply and distribution of medical equipment needed to fight the Coronavirus (COVID-19) pandemic. This letter can provide guidance to other companies considering collaborations to assist in the response to COVID-19. Access full article.

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HSR Update – Early Termination Is Again An Option

In a prior note we provided guidance on COVID-19’s Impact on HSR Filing Timelines.  The Agencies had indicated that early termination would not be granted while FTC operated on a temporary e-filing system. Today, the Agencies have updated that guidance and as of March 30 will again grant early termination when both the FTC and DOJ have determined that no enforcement action will be taken during the initial waiting period.  The granting of early termination for the initial HSR waiting period is not a right and is granted only at the Agencies’ discretion. The new guidance from the Premerger Notification Office states that early termination will be provided on a more limited basis and later in the process than historically provided.

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COVID-19’s Impact on HSR Filing Timelines (UPDATED)

With COVID-19-related closures rolling in daily, you may have questions about the operating status of the federal government’s antitrust enforcement agencies. Currently, the HSR review process does not seem to be significantly impacted,  although the agencies will not grant a request for early termination during this period (as noted in our recent update, the FTC will again process early termination requests as of March 30, though on a more limited basis and later in the process than historically provided). Unlike the government shutdowns in 2013 and 2018, all FTC and DOJ staff are working full time. In addition, the agencies have implemented a mandatory e-filing system for all HSRs. Given that the agencies will continue to work full-time and that an e-filing system is in place, we think it is unlikely that there will be significant impact on timing for the vast majority of transactions, particularly where there is no competitive overlap between the...

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Clean Hands Can Stop More than COVID-19: Antitrust Risks in Times of Supply and Demand Shocks

The potential for government investigation increases during periods of rapid and extreme movement in price. The US Department of Justice (DOJ) recently reiterated its focus on prosecuting violations of antitrust laws, especially in areas affected by the coronavirus outbreak. On March 9, 2020, the DOJ announced that individuals or companies engaging in price fixing, bid-rigging, customer or region allocation, or other antitrust violations could face criminal prosecution. Government scrutiny is likely to be even higher on companies that produce items for sale to federal, state or local governments, as the DOJ’s Procurement Collusion Strike Force acts as a dedicated watchdog over government contractors to prevent bid-rigging in government contracts. More information on the Strike Force is available here. Access the full article.

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