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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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What to Expect from FTC’S Big Tech Merger Review

On Feb. 11, the Federal Trade Commission announced that it had issued special orders to five large technology companies, requesting information on prior acquisitions completed by the companies during the past 10 years. The FTC’s announcement follows several recent high-profile events relating to technology mergers, including the FTC’s Hearings on Competition and Consumer Protection in the 21st Century and the FTC’s creation of a Technology Task Force. The key question driving the FTC’s special orders is whether nonreportable deals might warrant further investigation or challenge. The special orders present challenges and opportunities for the five companies and for other acquisitive companies that may face questions down the road. To access the full article, featured in Law360, please click here.

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DOJ Announces Procedural Reforms Seeking to Resolve Merger Investigations within 6 Months of Filing

Today, Assistant Attorney General Makan Delrahim announced a series of reforms with the express goal to resolve most merger investigations within six months of filing. The reforms seek to place the burden of faster reviews not only on the Antitrust Division of the Department of Justice (DOJ), but also on the merging parties. The DOJ will require fewer custodians, take fewer depositions, and commit to shorter time-periods in exchange for merging parties providing detailed information to the DOJ early in the investigation in some cases before a Hart-Scott-Rodino (HSR) filing is made. AAG Delrahim believes that merging parties need to avoid “hid[ing] the eight ball” and work with the DOJ in good faith to remedy transactions that raise competitive concerns. By announcing these reforms, the DOJ acknowledges that merger reviews are taking longer in recent years. AAG Delrahim cited a recent report noting that the length of merger reviews has increased 65 percent...

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Senate Democrats Push for Tougher Merger Enforcement

On September 14, 2017, Senator Amy Klobuchar (D-MN), introduced new legislation to curtail market concentration and enhance antitrust scrutiny of mergers and acquisitions. As the Ranking Member of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, Klobuchar is the leading Senate Democrat for antitrust issues. Two bills were submitted to the Senate: the Consolidation Prevention and Competition Promotion Act (CPCPA) and the Merger Enforcement Improvement Act (MEIA). The CPCPA is co-sponsored by Senators Kirsten Gillibrand (D-NY), Richard Blumenthal (D-CT) and Ed Markey (D-MA). The MEIA is co-sponsored by Senators Blumenthal, Markey and Gillibrand, along with Senators Patrick Leahy (D-VT), Al Franken (D-MN), Cory Booker (D-NJ), Dick Durbin (D-IL), Mazie Hirono (D-HI) and Tammy Baldwin (D-WI). Both bills propose amendments to the Clayton Act. Earlier this year, Senate democrats announced these legislative proposals...

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The LATEST: FTC “Second Requests” to be Narrower in Scope under Ohlhausen’s Leadership

Transactions that meet the Hart-Scott-Rodino thresholds for notification must be reported to the Federal Trade Commission (“FTC”) and Department of Justice. Where a notified transaction raises competition concerns, the reviewing agency may decide to launch an in-depth investigation and request additional information from the merging parties, known as a “Second Request,” which can take several months and cost companies millions of dollars to fully respond. Under FTC Acting Chairwoman Maureen Ohlhausen’s leadership, however, the burden of a Second Request may decrease, as she intends to narrow their scope. WHAT HAPPENED: Acting Chairwoman Ohlhausen has signaled that Second Requests will be more limited under her leadership, based on comments made on February 15, 2017 at a Washington conference. The standard for initiating a Second Request will not change. However, once initiated, Second Requests will be narrower in scope, in terms of markets assessed and data...

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Has Antitrust Enforcement Been ‘Reinvigorated’ Under Obama?

In the 2008 presidential election campaign, then-candidate Barack Obama promised to “reinvigorate” antitrust enforcement. Over the last few years, several observers have concluded that the Obama administration’s antitrust record is not substantially different from that of his predecessor. Conventional wisdom suggests that antitrust enforcement is non-partisan. Some key statistics bear out this conclusion, but a comparative review of the data in Hart-Scott-Rodino (HSR) Annual Reports published jointly by the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ), including the recently issued fiscal year 2014 report, reveals some significant differences in antitrust enforcement during the Obama administration. Analyzing the first six years of each administration reveals some superficial differences, but also significant continuity. Between 2001 and 2006, the agencies received a total of 9080 HSR filings; in 2009–2014 they received only 7530...

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Notification Threshold Under the Hart-Scott-Rodino Act Increased to $76.3 Million

The U.S. Federal Trade Commission (FTC) recently announced increased thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) and 2015 thresholds for determining whether parties trigger the prohibition against interlocking directors under Section 8 of the Clayton Act. Notification Threshold Adjustments Pursuant to the amendments passed by the U.S. Congress in 2000, the FTC published revised thresholds for HSR pre-merger notifications in the Federal Register on January 21, 2015.  These increased thresholds will become effective on February 20, 2015.  These new thresholds apply to any transaction completed and any HSR pre-merger notifications filed on or after February 20, 2015. As required, the FTC adjusted the notification thresholds based on the change in the gross national product (GNP) for the fiscal year ending September 30, 2014.  Most notably, the base filing threshold of $50 million, which frequently determines whether a...

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FTC and DOJ Release FY 2013 HSR Annual Report

On May 21, 2014, the Federal Trade Commission (FTC) and Department of Justice (DOJ) released the Hart-Scott-Rodino Annual Report covering Fiscal Year (FY) 2013 (October 1, 2012 – September 30, 2013).  The report describes key merger enforcement actions over the past year and provides interesting data regarding the agencies’ antitrust enforcement activity. Specifically, the report indicates that in FY 2013, 1,326 transactions were reported under the Hart-Scott-Rodino (HSR) Act, representing an approximate 7 percent decline in reported transactions from FY 2012.  The FTC was granted clearance to investigate 145 of these transactions, while the DOJ was granted clearance to investigate 72 transactions.  Of the 145 transactions the FTC investigated in FY 2013, it only issued 25 second requests.  In other words, the FTC only issued second requests in 17.2 percent of its investigations in FY 2013.  The DOJ’s Antitrust Division, on the other hand, issued second...

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Federal Trade Commission Announces Revised, Higher Pre-merger Filing Thresholds

On January 17, 2014, the Federal Trade Commission (FTC) announced revised, higher Hart-Scott-Rodino (HSR) pre-merger notification filing thresholds.  The FTC adjusts the HSR thresholds annually to represent the increase or decrease in GNP.  These revised thresholds will become effective 30 days from the date on which notice is published in the Federal Register, which should occur within the next week.  As such, we expect that these new thresholds will become effective by late February.  Once we know the precise effective date for these adjusted thresholds, we will publish an On The Subject that can be distributed to clients.  Clients with transactions pending may benefit from the higher threshold if the transaction closes on or after the effective date and ultimately falls below the revised threshold. Most notably, the size-of-transaction threshold, which frequently determines whether a transaction requires an HSR notification, will increase from $70.9...

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