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 March 18, President Trump fired the Federal Trade Commission’s two Democratic Commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter. The move represents the latest effort by the Trump administration to exert greater control over executive-branch agencies, including bi-partisan independent agencies like the FTC.

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.

Four days before the change in administration and in the wake of several high-profile trial losses in cases involving alleged “no-poach” and wage-fixing agreements, the Federal Trade Commission (FTC) and the Department of Justice, Antitrust Division (DOJ) jointly approved new guidelines, Antitrust Guidelines for Business Activities Affecting Workers” (the “2025 Guidelines” or “Guidelines”), that explain how antitrust enforcers have identified and assessed whether an agreement or business practice affecting workers may violate the antitrust laws.  The 2025 Guidelines were voted out at the FTC on a split 3-2 vote along party lines, with a brief but scathing dissenting statement from the Republican commissioners (including incoming FTC Chair Andrew Ferguson) that raises serious doubts as to how well the Guidelines reflect the approach the agencies will take during the next four years.  On the eve of the incoming Trump Administration, the 2025 Guidelines replaced the previous joint DOJ and FTC antitrust guidelines regarding employment practices that were issued in 2016, “Antitrust Guidance for Human Resource Professionals” (the “2016 Guidelines”), during the tail-end of the Obama Administration.

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.

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 saga of DNA-sequencing firm Illumina’s quest to acquire cancer detection-test maker Grail ended last month when the Fifth Circuit largely upheld the Federal Trade Commission’s decision to block the deal. The appellate decision is significant on several levels.  First, it is the first time in decades that either federal antitrust enforcer has succeeded in blocking or forcing the abandonment of a vertical merger after litigating to a decision.

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.

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 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. 

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.

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.

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.

The DOJ and FTC announced on Tuesday that they are jointly reviewing the most recent versions of both the Horizontal and Vertical Merger Guidelines, and invited public comments on a wide range of issues detailed in a lengthy Request For Information. The RFI itself and the announcement of the review signal that the agencies are aligned in making significant changes to the merger guidelines, both to expand the scope of issues covered by the guidelines and to reflect an approach rooted in older case law that would support much more stringent merger scrutiny and enforcement.