Insights

On March 27, 2025, the Department of Justice Antitrust Division launched an Anticompetitive Regulations Task Force (the “Task Force”) designed to identify and eliminate state and federal laws and regulations that are deemed to hinder free market competition. The Task Force will bring together attorneys, economists, and other staff from across the Division and interagency partners, and its target sectors include the transportation, healthcare, energy, food & agriculture, and housing industries.

On November 27, 2024, a group of eleven state attorneys general (the “AGs”) sued three of the world’s largest asset managers (the “Asset Managers”), accusing them of anticompetitive stock acquisitions, deceptive asset management practices, and an antitrust conspiracy to restrict coal output. The states seek declaratory and injunctive relief including divestitures, as well as fines under state laws, although the allegations could provide a basis for follow-on private treble damages claims under the antitrust laws.

The Federal Trade Commission voted unanimously to pass a final rule implementing significant changes to the premerger notification regime under the Hart-Scott-Rodino (HSR) Act. The Department of Justice concurred with the vote. The final rule significantly reins back the agency’s proposed rule issued in June 2023—a proposal that would have imposed substantial new burdens on merging parties and prompted widespread criticism. The final rule is still the most significant overhaul of the HSR premerger notification requirements in decades, and the new requirements will impose additional time and expense on merging parties, some of which can be mitigated by putting processes in place in advance.

On Tuesday, June 11, 2024, Crowell & Moring (Crowell) and King's College London co-hosted their 6thannual Competition Law Conference at TheMerode in Brussels. The event featured a keynote address by David Lawrence, Policy Director at the Antitrust Division of the US Department of Justice (DOJ), and four panels of experts discussing the latest developments in competition law in the EU, UK and US. Key topics included the impact of AI and digital innovation, no-poach and non-compete provisions in the employment context, state aid and the Foreign Subsidies Regulation, and developments in merger enforcement. Distinguished speakers from the EU, UK and US, representing diverse perspectives from regulatory authorities, academia, and industry, shared their insights on these pressing issues.

At the beginning of the year, we brought to your attention that a number of important Belgian and EU legislative changes are likely to have an impact in 2024: there are new laws that have been adopted and proposals that are expected to firm up into law.

A number of important Belgian and EU legislative changes are likely to have an impact in 2024. On the one hand, there are new laws that have been adopted and will start to bite, and, on the other, there are proposals that are expected to firm up into law.

After more than two years of preview and consultation, including thousands of public comments, the Antitrust Division of the Department of Justice and the Federal Trade Commission issued the final version of their 2023 Merger Guidelines (“Guidelines”) yesterday, December 18, 2023. As we noted when the draft guidelines were released in July, the final Guidelines both harken back to older, long-standing precedent and provide a framework for how the Agencies apply merger enforcement policy in modern economic markets. The Guidelines hold fast to the Biden administration’s enforcement policy to address harms from what they perceive to be “excessive” corporate consolidation by reinvigorating and enhancing merger enforcement. Yet, the final Guidelines show that the Agencies have responded to at least some of the criticism of the draft version, and may be more likely to align with how courts currently analyze merger challenges.

In an early test of antitrust claims based on alleged algorithmic price fixing, a federal judge dismissed a class-action complaint alleging that hotel operators conspired to unlawfully fix the prices of hotel rooms on the Las Vegas Strip using pricing software. Last week, a judge in the District of Nevada dismissed allegations that Las Vegas Strip hotel operators colluded to use pricing software to fix room rates, finding that Plaintiffs failed to plausibly allege that there was an agreement among the hotels to use the same pricing algorithm or even the same software product; which hotel operators were involved in the purported agreement; or that there was any confidential information exchanged via the software to support a “hub-and-spoke” conspiracy. The court did, however, grant Plaintiffs leave to submit an amended complaint. Thus, the case (Gibson v. MGM Resorts) provides initial guideposts for how companies using pricing software might reduce potential antitrust risks.

If the year 2022 was about Executive Branch agencies pursuing ESG (environmental, social, and governance)-related activities—from the Securities and Exchange Commission’s GHG and ESG disclosure proposals, to the Department of Labor’s final reversal of the Trump-era rule discouraging ESG-focused investing by pension funds, and the Federal Acquisition Regulatory Council’s proposal to require government contractors to disclose GHG emissions—then 2023 has seen the 118thCongress taking center stage. Policymakers are questioning how ESG issues impact businesses, workers, and investors; and what role the government should play in encouraging or discouraging ESG considerations.  

The Federal Trade Commission took a major step recently to crack down on unlawful interlocking directorates and leverage its “standalone” authority that prohibits “unfair methods of competition.”  In a complaint and consent order issued last week, the FTC alleged that a transaction between EQT Corporation and QEP Partners, LP (Quantum) violated Section 8 of the Clayton Act, the first time in 40 years that the agency has enforced the statute.  The FTC also alleged that the transaction and an existing joint venture independently violated Section 5 of the FTC Act based largely on the prospective ability to share competitively sensitive information, an expansive theory of harm. The consent order goes well beyond the typical remedy for a Section 8 violation – prohibiting the interlock – and also prohibits Quantum from serving on certain other competitors’ boards without prior approval of the Commission.  The Section 5 information sharing remedy is similarly aggressive, requiring the parties to dissolve an existing “cozy” joint-venture and requiring Quantum to divest all EQT shares it acquired in the underlying transaction.  These novel theories of harm and aggressive remedies are a warning shot to companies that the agencies are ramping up scrutiny of board interlocks and competitor information exchanges.

This week, after months of anticipation, the Antitrust Division of the Department of Justice and the Federal Trade Commission issued draft revised Merger Guidelines containing 13 principles that the Agencies use as a framework for evaluating all forms of transactions. As widely expected, the Draft Guidelines harken back to 1960s-era legal precedents and seek to roll back the modern structural presumptions adopted in the 2010 Horizontal Merger Guidelines. They also express a far more skeptical view of the benefits of mergers in ways that would subject more mergers to challenge. At the same time and in line with current DOJ and FTC practices, the Draft Guidelines expressly expand the reach of merger reviews into labor markets, take a skeptical view of serial acquisitions, add new provisions for multi-sided platforms, and espouse broader theories of harm.

On 16 July 2020, we started one of our Client Alerts as follows:

This week, the Federal Trade Commission announced a massive overhaul of the Hart-Scott-Rodino (HSR) Act’s rules and instructions for premerger filings to the U.S. antitrust agencies. The proposed rule represents the most significant revisions to the HSR process since its inception in 1976, vastly expanding the scope of information required to be submitted by parties. The proposed rules would impose significant additional substantive and procedural burdens, substantially increase the time and cost to prepare filings, and raise critical strategic questions for filing parties.

On Friday, April 14, the United States Supreme Court issued a unanimous decision in Axon Enterprise, Inc. v. Federal Trade Commission, holding that constitutional challenges to the Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) can be heard in federal district court in the first instance, without the plaintiffs first having to exhaust those arguments through the agencies’ respective administrative enforcement processes. The Court did not address the underlying constitutional challenges, but the long-awaited decision on the jurisdictional question is likely to encourage more constitutional challenges to those and other agencies’ enforcement schemes being raised and heard first in the federal courts.

On February 16, 2023 the Federal Trade Commission (“FTC”) hosted a virtual public forum on the agency’s proposed rule that would ban virtually all non-compete agreements between employers and employees, previously reported on here. The forum, which included a discussion by a panel of six individuals who have experience with or have been affected by non-compete agreements, as well as an open public comment opportunity, reflected surprisingly mixed views on whether the FTC’s proposed rule should be adopted.

On January 31, 2023, U.S. District Court Judge Edward Davila (N.D.Cal.) denied the request of the Federal Trade Commission (FTC) for a preliminary injunction to halt Meta’s acquisition of virtual reality (VR) fitness app developer Within.  Because Meta does not compete in the VR dedicated fitness app business, the litigation was a rare example of how a court assesses the “actual” and “perceived” potential competition theories of harm.  Although the court upheld the FTC’s market definition, claims of a highly concentrated market, and the validity of these potential competition theories, the court ultimately held that the FTC failed to demonstrate it was “reasonably probable” Meta would have entered the VR dedicated fitness app business without the Within acquisition, or that VR dedicated fitness app developers’ perception of Meta as a potential entrant had a direct effect on tempering anticompetitive conduct in that market. 

In a first-of-its kind enforcement action, on Wednesday the Federal Trade Commission announced settlements with three companies and two individuals who the agency claimed violated Section 5 of the FTC Act by imposing non-compete restrictions on their workers that the agency said constituted an unfair method of competition. The agency said these non-compete restrictions prevented workers from obtaining higher wages and impeded other companies’ ability to compete.

Yesterday, the Federal Trade Commission proposed a sweeping new rule that would ban employers from including non-compete terms in employment agreements with virtually all of their workers – from janitors to senior executives. Describing such agreements as an “exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses,” the FTC’s rule deems non-compete agreements to be an “unfair method of competition” under Section 5 of the FTC Act, without regard for any business justifications or reasonableness. Potential rulemaking against non-compete clauses has been percolating for some time and has support from the White House, but the breadth of the proposed rule is nonetheless surprising.

One of the longest running controversies in antitrust enforcement policy concerns the breadth of the Federal Trade Commission’s authority to define and prohibit “unfair methods of competition” under Section 5 of the FTC Act.  In April of this year, the new Commission majority withdrew the brief Statement of Enforcement Principles issued in 2015, asserting that the earlier Statement imposed unwarranted constraints on the Commission’s authority and promising new guidance.  That guidance was issued last week and portends a significantly more expansive approach to FTC antitrust enforcement on a wide range of conduct, including exclusive contracts, refusals to deal, bundling, price discrimination, and serial acquisitions.

The Supreme Court yesterday heard oral arguments in Axon Enterprises v. The Federal Trade Commission and Securities and Exchange Commission v. Cochran, both of which present the question whether parties to administrative enforcement actions can promptly challenge the authority and structure of the agencies in federal district courts, or must await the conclusion of the administrative proceedings to raise their objections in the courts of appeals, as is provided for in the FTC Act, the Securities Exchange Act, and the Administrative Procedures Act. The two cases come at a time when the Supreme Court has been receptive to complaints about administrative agency authority and at least some of the justices appeared ready to clear the way for Axon and Cochran to return to the district courts to pursue their wide-ranging challenges to the authority of the FTC and SEC, respectively.