Insights

In 2023 and 2024, several U.S. states enacted extensive “Right to Repair” laws, reflecting a growing legislative focus on ensuring consumers have access to the parts and resources needed to repair their own products without relying on the product’s original manufacturer. Most recently, California, Colorado, Minnesota, New York, Massachusetts, and Oregon implemented comprehensive regulations aimed at providing consumers direct access to tools, parts, and information for the repair of various electronic devices and equipment, including digital products and agricultural machinery. As the “Right to Repair” movement continues to gain significant traction across the United States, it is critical that manufacturers understand these laws and how these laws will impact their individual businesses.

Federal Trade Commission Chair Andrew Ferguson announced on February 24, 2025, that the FTC will create the agency’s “first-ever” labor task force, signaling the agency’s continued focus on competition in labor markets, answering an open question from companies as to the fate of the agency’s no-poach and non-compete enforcement priorities. On February 26 Chair Ferguson followed up on his announcement with a Directive Regarding Labor Markets Task Force, providing additional details on the task force and the agency’s priorities.

In the last days of the Biden Administration, the Antitrust Division (DOJ) took the rare step of bringing two separate enforcement actions relating to violations of the Hart-Scott-Rodino (HSR) Act. The DOJ announced a record $5.6 million civil penalty for “gun jumping” in connection with a 2021 acquisition of a crude oil producer. Days later, the agency sued a private equity fund for violating the HSR rules by failing to make required notifications and omitting or altering required “Item 4” documents.

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 April 23, 2024, the Federal Trade Commission (“FTC” or “the Agency”) voted 3-2 along partisan lines in a special public meeting to adopt the “Non-Compete Clause Rule” (the “Final Rule”), which will prohibit most employee non-competes with retroactive effect, except existing non-compete provisions of “senior executives.”  The Final Rule will also ban future non-compete agreements, including for senior executives, with limited exceptions.  The rule will not become effective until 120 days after publication in the Federal Register, and covered employers will be required to comply with the Final Rule by that effective date, which could come as early as August this year.  By the FTC’s own estimate, this ban could affect up to one-in-five American workers.

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.

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.

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 April 4th, the Antitrust Division of the Department of Justice announced updates to its leniency program, issuing an updated policy and set of frequently asked questions (“FAQs”), marking the first updates to the program since 2017 and offering a window into a higher bar that the Biden Administration is setting for those seeking leniency.

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.

At a time when everyone -- from automotive OEMs trying to obtain critical computer chips to consumers purchasing new appliances -- is frustrated by supply chain disruptions, the Justice Department is the latest federal partner to step into the fray to address those problems. Yesterday the Antitrust Division and the Federal Bureau of Investigation announced the formation of a joint initiative to deter, detect, and prosecute illegal collusion under the guise of global supply chain disruptions.

The Federal Trade Commission (“FTC”) announced several significant changes to the second request merger review process in a blog post by Holly Vedova, who was appointed yesterday as the Director of the FTC’s Bureau of Competition. This September 28, 2021 announcement comes on the heels of Chair Khan’s September 22, 2021 “Vision and Priorities for the FTC” Memorandum in which she outlined strategic priorities, including the need to address “rampant consolidation” by “finding ways to strengthen [] merger enforcement work as well as generally focusing [FTC] resources on scrutinizing dominant firms, where lack of competition makes unlawful conduct more likely.” The announcement of the changes to the second request process cites this year’s record-breaking “merger wave,” projecting that there may be as many as 3,500 merger notifications filed with the FTC and DOJ by the end of 2021. The post states that the high number of filings, along with stagnant funding, low full-time employee counts, and declining resources, has prompted the FTC to modify its practices regarding second requests for information and documentary material. These changes almost surely mean additional time and expense for merging parties with transactions under extended review by the FTC, and it will be important for companies engaged in M&A activity to proactively address these issues, both in their agency strategy and in their merger agreements.

In the latest phase of a case proving that there is no amount of anticompetitive activity too small to escape prosecution, the Antitrust Division of the Department of Justice is continuing its efforts to thwart anticompetitive activity in public procurements, striking a plea deal with a Missouri individual in connection with rigging bids at online GSA auctions for surplus government equipment. Acting Antitrust Division Assistant Attorney General Richard A. Powers emphasized the focus of DOJ and its Procurement Collusion Strike Force partners on pursuing those who undermine competition in government contracting, stating that “the defendant’s self-serving scheme stole from the government and robbed American taxpayers.” Inspector General Carol F. Ochoa of the GSA, which investigated the matter, echoed Mr. Powers’s sentiment, stating that “[c]ompetition is a fundamental component of any fair auction,” and that the “GSA OIG will continue to investigate allegations of collusive activities that undermine the integrity of GSA [a]uctions and short-change the taxpayer.”

This week, a federal grand jury in Las Vegas, Nevada returned an indictment charging a health care staffing company and one of its former managers with entering into an unlawful agreement with a competing staffing company to allocate employee nurses as well as to fix nurses’ wages. This indictment comes on the heels of recent statements by Acting AAG Richard Powers and others in Antitrust Division leadership that the DOJ will continue to aggressively crack down on what it believes are unlawful no-poach agreements, and signals a continued focus both on no-poach and related issues as well as the healthcare industry more broadly.

Yesterday, the Antitrust Division of the Department of Justice announced its first criminal wage-fixing prosecution, charging the former owner of a Texas home health care staffing agency with violating Section 1 of the Sherman Act by participating in a conspiracy to suppress rates for physical therapists and physical therapy assistants.