FTC Archives - Page 8 of 32

FTC Settlement Agreement Demonstrates Commissioners’ Competing Views on Merger Non-Competes

by Gregory E. Heltzer and Joshua W. Eastby | Oct 4, 2019 | Energy/Commodities, FTC Developments, Mergers & Acquisitions

What Happened

DTE and Enbridge’s natural gas pipeline joint venture, Nexus, agreed to purchase the Generation Pipeline (Generation).
Generation was owned by a group of sellers including North Coast Gas Transmission (North Coast).
Generation’s primary asset is a 23-mile pipeline that serves the Toledo, Ohio, area.
North Coast continues to own a competing pipeline near Toledo, Ohio.
The purchase agreement contained a non-compete provision that prevented the sellers, including North Coast, from competing in three counties surrounding Toledo, Ohio, for three years.
After an investigation, the FTC announced a settlement with DTE, Enbridge and Nexus to remedy the FTC’s concern with the non-compete provision by requiring the purchase agreement to be amended to remove the non-compete provision.
The FTC Commissioners were unanimous in their conclusion that the challenged non-compete was unlawfully broad, though several Commissioners issued concurring statements regarding the import of the FTC’s action in this case.

Antitrust M&A Snapshot | US Agencies Aggressive While the EC Publishes Report on Competition Policy for the Digital Era

by Joshua W. Eastby | Aug 28, 2019 | DOJ Developments, EC Developments, EU Developments, FTC Developments, Mergers & Acquisitions

The second quarter of 2019 proved to be a busy season for antitrust matters. In the United States, agencies continued to be aggressive and blocked transactions or required significant remedies. They cleared three mergers where divestitures were required; and in the face of FTC or DOJ opposition, companies abandoned several transactions, including between Republic National Distribution Company and Breakthru Beverage Group. Regarding vertical transactions, we continued to see a split between the FTC Republican and Democratic Commissioners regarding whether enforcement is required and the appropriate remedies.

In the European Union, the EC published a report on competition policy for the digital era, which deals with, among other things, acquisitions of nascent competitors. The EC also closed two merger control proceedings subject to divestitures, blocked a proposed joint venture, and showed that it will seek large fines for companies violating EU competition rules for merger notifications.

Access the full issue.

The Latest: Changes Coming to Revenue Reporting for HSR Filings

by Jonathan Ende | Jun 28, 2019 | DOJ Developments, FTC Developments, Mergers & Acquisitions

What Happened:

The Federal Trade Commission (FTC), along with the Antitrust Division of the Department of Justice (DOJ), approved amendments to the Hart-Scott-Rodino (HSR) Rules and the instructions for completing the HSR Form.
After the amendments take effect on September 25, 2019, HSR filers will be required to use new 10-digit North American Product Classification System (NAPCS) codes in place of the current 10-digit North American Industry Classification System (NAICS) codes when reporting revenues in the HSR Form. The Form will continue to use 6-digit NAICS codes, but will switch from the 2012 codes to the latest version, released in 2017 by the Census Bureau.
Data on non-manufacturing revenue will be required to be reported using the updated 6-digit NAICS codes, while data on manufacturing revenue will be required to be reported using both the 6-digit NAICS industry code and the 10-digit NAPCS product codes.
The FTC intends to update the instructions for the HSR Form to reflect the changes made to the revenue reporting requirements.

What this Means:

Companies expecting to file an HSR after September 25 will need to familiarize themselves with the new 10-digit NAPCS codes and the updated 6-digit 2017 NAICS codes, and may want to update their databases to be in a position to file promptly when the new codes take effect on September 25.

Antitrust Enforcement Update: Spotlight on Physician Transactions

by Ashley Fischer, Katharine M. O'Connor, Lisa A. Peterson, Stephen Wu and McDermott Will & Emery | Jun 21, 2019 | FTC Developments, Healthcare Antitrust

At both the state and federal level, antitrust enforcement agencies continue to pursue successful challenges to physician practice transactions. This article summarizes two recent enforcement actions, as well as a new state law that requires prior notice of healthcare provider transactions. We also offer practical takeaways for providers pursuing practice acquisitions.

Access the full article.

Texas Court Declares Licensing Offer Based on End Device Is FRAND, Diverges from California Court in Qualcomm

by Anthony S. Ferrara, Lisa A. Peterson and McDermott Will & Emery | Jun 3, 2019 | IP Antitrust, Private Litigation

Standard-essential patent holders and implementers may face uncertainty regarding licensing practices following a May 23 Texas court ruling. In the ruling, a Texas federal judge reached a conclusion different from a recent California court decision—FTC v. Qualcomm—on the question of whether an SEP holder must base its royalty rates on the “smallest salable patent-practicing unit” in order to comply with a fair, reasonable and non-discriminatory royalty commitment.

Access the full article.

Federal Judge Finds Qualcomm Violated the FTC Act Through Monopolistic and Exclusionary Conduct

by Lisa A. Peterson, Anthony S. Ferrara and McDermott Will & Emery | May 23, 2019 | FTC Developments, IP Antitrust, Monopolization/Abuse of Dominance

On May 21, a California federal judge ruled in favor of the Federal Trade Commission (FTC) in its suit against Qualcomm in a much-anticipated decision, concluding that Qualcomm violated the FTC Act by maintaining its monopoly position as a modem chip supplier through a number of exclusionary practices, including refusing to license standard essential patents (SEPs) on fair, reasonable and non-discriminatory (FRAND) terms. Qualcomm likely will appeal the decision to the US Court of Appeals for the Ninth Circuit, but in the meantime, the court’s sweeping decision is likely to affect the course of dealing between SEP-holders and licensees. The decision is likely to substantially affect the ways in which SEP-holders take their technology and associated components that they manufacture to market.

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Antitrust M&A Snapshot | US Tackles Vertical Merger Enforcement Guidelines while the EC Blocks 2 Transactions

by McDermott Will & Emery, Anthony S. Ferrara, Jon B. Dubrow and Joel R. Grosberg | May 15, 2019 | DOJ Developments, EC Developments, EU Developments, FTC Developments, Mergers & Acquisitions

The first quarter of 2019 proved to be as active as ever for antitrust regulators in both the United States and Europe. In the United States, vertical merger enforcement was the focus of a few high-profile matters. The US DOJ has been working on an update to the Non-Horizontal Merger Guidelines, possibly providing clarification for merging parties.

Meanwhile in Europe, although the European Commission cleared a number of merger control proceedings with remedies, the European Commission also blocked two transactions during the first quarter of 2019.

Access the full issue.

Hélène de Cazotte, a trainee in the Firm’s Brussels office, also contributed to this publication.

FTC Hearing on Broadband

by McDermott Will & Emery | Apr 25, 2019 | Consumer Protection/Privacy, FTC Developments

The tenth of the FTC’s Hearings on Competition and Consumer Protection in the 21st Century focused on competition and consumer protection issues in US broadband markets. The panelists addressed developments in US broadband markets, technology, and law since the FTC staff’s 2007 Broadband Connectivity Competition Policy report and the FTC staff’s 1996 Competition Policy in the New High-Tech, Global Marketplace report.

Four panels of industry experts broadly discussed: (i) how the FTC should identify and evaluate advertising claims by internet service providers (ISPs) with respect to delivery speed; (ii) how broadband networks and markets have evolved since the 2007 Broadband Report; and (iii) how the FTC should identify and evaluate anticompetitive conduct in the broadband industry.

Read the full article.

Originally published by Competition Policy International, April 2019.

Antitrust M&A Snapshot | Regulator Focus on High-Tech Transactions, Acquisitions and Impact on Innovations

by Noah Feldman Greene, McDermott Will & Emery, Carina Kant, Jon B. Dubrow and Joel R. Grosberg | Mar 11, 2019 | DOJ Developments, EC Developments, FTC Developments, German Developments, Joint Ventures/Competitor Collaboration, Mergers & Acquisitions

Antitrust regulators in the United States and Europe were very active in the final quarter of 2018 closing a large number of cases requiring in-depth investigations. In the United States, regulators continue their focus on the potential need to update their methods of reviewing high-tech transactions with public hearings on the future of antitrust enforcement.

In Europe, recent reviews of Takeda’s acquisition of Shire and the creation of a joint venture between Daimler and BMW show a focus on how transactions will impact innovation for new products.

Read the full issue.

Out of Bounds: Sports Agencies Flagged for Anticompetitive Bidding Agreements

by Jon B. Dubrow and Lisa A. Peterson | Feb 27, 2019 | Cartel Enforcement, DOJ Developments, Joint Ventures/Competitor Collaboration, Mergers & Acquisitions

The US Department of Justice (DOJ) recently sued former joint venture partners because they allegedly coordinated their competitive activities beyond the legitimate scope of their venture. This case illustrates several important points. First, companies who collaborate through joint ventures and similar arrangements need to be mindful that any legitimate collaborative activity does not “spill over” to restrain competition in other unrelated areas. Second, DOJ discovered the conduct during its review of documents produced in connection with a merger investigation. This is the most recent reminder of how broad ranging discovery in merger investigations can result in wholly unrelated conduct investigations and lawsuits. Third, one of the parties was a portfolio company of a private equity sponsor, highlighting how private investors can be targeted for antitrust violations. (more…)

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