On April 14, 2025, a federal jury convicted a home health agency executive in a wage-fixing conspiracy under the Sherman Act, marking the US Department of Justice’s (DOJ) first-ever criminal antitrust labor market trial conviction. This conviction marks a significant milestone in antitrust enforcement, highlighting the government’s commitment to addressing labor market wage-fixing and no-poach agreements, and underscores the need for companies to ensure compliance with antitrust laws to avoid legal risks.
The Trump administration’s antitrust landscape continues to develop with key changes in industry and policy priorities, remedy expectations, and agency personnel. Among the updates, Mark Meador was confirmed as a commissioner of the Federal Trade Commission, President Trump signed an executive order to eliminate anticompetitive regulations, and the Department of Justice is partial to populist antitrust with the “America First” movement. These changes signal a shift in antitrust enforcement, with a focus on reducing regulatory burdens and addressing competitive issues in key sectors like healthcare, transportation, and entertainment.
The American Bar Association Antitrust Law Section held its annual Spring Meeting from April 2 to 5 in Washington, DC, where federal, state, and international antitrust enforcers shared key updates and enforcement priorities. At the Spring Meeting, antitrust agencies signaled continued scrutiny of mergers, noncompete agreements, and Big Tech – plus an uptick in state-level enforcement and continued consumer protection activity – regardless of changes in administration.
The Trump administration has taken significant steps to reshape antitrust enforcement by exerting greater control over the Federal Trade Commission (FTC), firing two Democratic FTC commissioners. Leadership has also begun to outline more of their priorities in speeches and interviews. These changes outline antitrust enforcement priorities, with a stronger emphasis on economic analysis and litigation against Big Tech, healthcare, and a continuing focus on labor market issues.
Starting today, February 10, 2025, all merger filings will be subject to new Hart-Scott-Rodino (HSR) rules. The new HSR rules will fundamentally alter the premerger notification process, and substantially increase the burden on filing parties, who will need to provide significantly more information and documents with their initial filings.
Companies can take steps today to make filings under the new rules less burdensome and increase the likelihood of achieving antitrust clearance, such as collecting and regularly updating the “off-the-shelf” information needed for all filings, and engaging in earlier discussions with the legal team to identify potential overlaps and supply relationships and develop key themes around transaction rationales and impacts on competition that will need to be included in the filing.
In the final week of the Biden administration, the Federal Trade Commission and US Department of Justice released two policies potentially impacting labor markets. The first is a Policy Statement on the Exemption of Protected Labor Activity for Independent Contractors, and the second is the Antitrust Guidelines on Business Practices that Impact Workers.
The policies address antitrust law as applied to independent contractors, especially gig workers, by contemplating new antitrust liability protection similar to the existing antitrust exemption for collective action by employees. They also list various business practices that could violate antitrust laws, impacting how companies manage their labor practices.
Companies should review their labor practices and agreements to ensure compliance with the new guidelines. Legal teams should stay informed about potential changes under the new administration and prepare for possible revisions or repeals of these policies. In the meantime, these policy statements and guidelines reflect agency positions and do not themselves change applicable law. The National Labor Relations Act continues to statutorily exclude independent contractors from unionization rights and processes.
On December 12, 2024, following a nearly two-year-long investigation, the Federal Trade Commission (FTC) initiated its first litigation under the Robinson-Patman Act (RPA) in more than two decades. The FTC sued Southern Glazer’s, a large wine and spirits distributor, alleging the company charged higher prices to smaller retailer customers than it did to large chains, violating the RPA.
The litigation, filed in the last days of the Biden administration’s antitrust regime, may ultimately end with a whimper under the next administration. But for companies managing modern pricing systems, the complaint and the controversy surrounding it provide important insights into how complainants could seek to advance RPA suits in today’s retail environment. The complaint illustrates how current FTC leadership intended to operationalize its new focus on price discrimination and provides a roadmap for how state regulators and private plaintiffs can litigate the issue regardless of how the FTC proceeds under the new administration. Perhaps even more useful, the dissents filed by FTC Commissioners Melissa Holyoak and Andrew Ferguson suggest a blueprint for a legal response to future actions that may resonate with other regulators – and more importantly, with federal and state judges.
On January 20, 2025, President-elect Donald J. Trump’s administration will come into power. The McDermott antitrust and competition team has analyzed the first Trump term, compared it to the Biden administration’s actions, and reviewed statements from those involved in the upcoming Trump administration. While it appears that the new administration will be good for business, especially for companies planning to expand through mergers and acquisitions, this client alert takes a closer look at what is likely to change and what is likely to stay the same in antitrust enforcement throughout the next four years.
During a recent webinar, Jon Dubrow, Greg Heltzer, Lisa Rumin, and Ryan Tisch provided a comprehensive introduction to the new Hart-Scott-Rodino (HSR) rules and their impact on the US premerger notification filing process. The program concluded with a Q&A moderated by Reese Poncia and featuring Ty Carson, a former Federal Trade Commission Premerger Notification Office lawyer, who shared his insider’s perspective from six years with the agency.
On October 10, 2024, the Federal Trade Commission issued new final rules governing the US premerger notification filing process. These rules – the first major overhaul to the Hart-Scott-Rodino (HSR) filing form in the nearly 50-year history of the HSR Act – will fundamentally alter the premerger notification process. While the rules omit some of the more extreme aspects proposed in the 2023 draft rules, they impose substantially more burdens on filing parties than the current filing regime. The changes will have wide-ranging implications for all parties required to notify transactions under the HSR Act.
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