Insights

The Southern District of Texas published an unsealed version of its January 31, 2025 opinion denying the Federal Trade Commission’s (FTC) motion for a preliminary injunction to enjoin Tempur Sealy’s acquisition of Mattress Firm. The decision marks another loss for vertical merger enforcement efforts, particularly agency efforts to block these deals outright rather than accept settlement “fixes.” This case—coupled with other agency losses like AT&T/Time Warner and Microsoft/Activision—will likely make it even more difficult for enforcers to win vertical merger challenges, particularly when the merging parties lack sufficient market share to foreclose competitors and offer remedies to fix the alleged competitive concerns.

The pending overhaul of the Hart-Scott-Rodino (HSR) rules faces a new challenge. Published in the Federal Register in November, the final HSR modifications were set to become effective on February 10, but late last week the U.S. Chamber of Commerce, a local Chamber chapter, the Business Roundtable, and the American Investment Counsel filed a complaint seeking to block their implementation. While the complaint does not seek a temporary restraining order or a preliminary injunction, the case further highlights the expanded regulations and additional burden the agencies are seeking to impose on merging parties, and places a spotlight on the issue as the Trump Administration prepares to take control of the antitrust agencies.

The Federal Trade Commission has announced its annual updates to the thresholds and filing fees related to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act). These dollar thresholds are indexed annually based on changes in the U.S. gross national product and the Consumer Price Index.

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.

In the latest sign that federal enforcers remain focused on increasing antitrust enforcement, last Thursday, the Justice Department (DOJ), Federal Trade Commission (FTC) and the Department of Health and Human Services (HHS) revealed an online portal, HealthyCompetition.gov, to encourage the public to submit reports on potential anticompetitive and monopolistic conduct in the healthcare sector.  The initiative seeks to address concerns that such behavior may affect healthcare affordability and quality, and employee wages. 

The Federal Trade Commission announced its annual updates to the thresholds and filing fees related to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) on Monday. These dollar thresholds are indexed annually based on changes in the U.S. gross national product and the Consumer Price Index.

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.

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.

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 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 Friday, February 3, DOJ announced in a press release that it has withdrawn support for three joint DOJ-FTC policy statements that explicitly describe certain “safety zones” applicable to information sharing among competitors and the formation of certain competitor collaborations (including healthcare provider joint ventures and accountable care organizations (ACOs)) that the antitrust agencies did not intend to prosecute. See 1993 Policy Statement, 1996 Policy Statement, 2011 Accountable Care Organizations. The FTC has not yet withdrawn its support for these statements and the DOJ does not apparently plan to issue new guidance, which may result in the agencies applying differing standards and, at a minimum, creates more uncertainty about how the agencies will evaluate conduct covered by these guidance documents.

The Federal Trade Commission announced yesterday the most significant changes to the jurisdictional thresholds and filing fees applicable to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) in several decades.

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.

This week, the Antitrust Division announced the resignation of seven directors from their corporate board positions in response to concerns their service may have violated Section 8 of the Clayton Act, a rarely-enforced statute that prohibits individuals from simultaneously serving on the board of directors of two or more competing corporations, also known as “interlocking directorates.” The announcement comes after recent remarks by both Antitrust Division and Federal Trade Commission leadership warning of forthcoming enforcement and reports that several public companies had received formal warning letters regarding potential Section 8 violations.

On May 25, 2022, following markup in the Judiciary Committee, Senator Amy Klobuchar introduced an amended version of the American Innovation and Choice Online Act (“AICOA”), an antitrust bill we previously reported on that aims to curtail self-preferential conduct by certain online platforms. The revised bill now carves out telecommunications providers and financial service companies from the bill’s prohibitions, and reduces potential penalties for violations.  Additionally, the revision now creates an exception to the bill’s technical interoperability requirements “where such access would lead to significant cybersecurity risk.”  Although critics complain the revisions do not go far enough to address the bill’s shortcomings, Senator Klobuchar and other bi-partisan supporters are pushing for a Senate floor vote this summer.

Senator Elizabeth Warren (D-MA) and Representative Mondaire Jones (D-NY) introduced the “Prohibiting Anticompetitive Mergers Act” (S. 3847 and H.R. 7101), which, if enacted, would dramatically change the standards and processes for federal merger review across all sectors of the economy, giving the DOJ and FTC powers like those of—if not stronger than—the European Commission. The new bill is perhaps the most aggressive federal legislative proposal yet seeking to halt and reverse industry consolidation, highlighting concerns likely to impact ongoing negotiations on Capitol Hill regarding other pending antitrust legislation.

This week, a DOJ Antitrust Division official signaled a significant expansion of its criminal enforcement program. While speaking at the ABA White Collar Conference in San Francisco, Deputy Assistant Attorney General Richard Powers said that the Division is considering criminally prosecuting violations of Section 2 of the Sherman Act, which prohibits monopolization. This is a major break from long-standing Division policy that it would prosecute only per se violations of the antitrust laws, and raises potentially significant due process concerns.

After seeing the first decrease in the HSR thresholds in over a decade last year, the Federal Trade Commission announced today that it will increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.