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FTC Proposes Significant Changes to HSR Filing Rules

October 8, 2020

The Federal Trade Commission has recently proposed major changes to the Hart-Scott Rodino (“HSR”) notification rules that would: 1) significantly change stock aggregation rules for funds with a common manager and 2) change the exemption which applies for acquisitions up to 10% of an issuer.

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Antitrust indictments for employer restraints against employees

January 12, 2021

On December 10, 2020, the Antitrust Division of the US Department of Justice (DOJ) indicted an individual employer owner, for the first time, for agreeing with a competing owner to reduce the wages that their workers were being paid. Moreover, on January 5, 2021, the DOJ indicted a corporation for conspiring with two competing employers to allocate a medical employment market by agreeing not to solicit each other’s senior employees.

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FTC suspends grants of early terminations and lowers minimum threshold for reporting acquisitions

February 12, 2021

The Hart-Scott-Rodino (HSR) Antitrust Improvements Act 1976 (as amended) is the pre-merger notification statute for the United States. It requires parties contemplating certain types of transaction involving the acquisition of assets, non-corporate interests (eg, limited liability company membership or partnership interests) or voting securities to file a notification form describing the transaction with the Federal Trade Commission (FTC) and the US Department of Justice and to wait a prescribed waiting period before consummating the transaction.

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Do three rights make a wrong? Private party challenging consummated merger can obtain divestiture years later

February 25, 2021

For the first time in history, a private party has successfully challenged an acquisition and obtained an order requiring a divestiture of a company that had been acquired years before the case was filed. In a highly anticipated decision, a court of appeals has affirmed that order.

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Pending legislative attempts to curb tech giants have much broader implications

March 25, 2021

A recent influx of proposed federal and state legislation seeks to strengthen and modernize the antitrust laws and expand antitrust enforcement. The political momentum behind these attempts reflects noisy bipartisan support for legislators to do something about the ever-growing economic power and political influence of Google, Facebook, Amazon and other so-called “tech giants.”

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Conceding the battle, but still waging the war: FTC will continue to target patent licensing practices

April 22, 2021

It may be tempting to draw conclusions from the Federal Trade Commission’s (FTC’s) recent decision to abandon its antitrust case against Qualcomm, but companies should not construe that decision as an indication that the FTC will cease pursuing similar cases. Once President Biden’s anticipated nominees to the FTC are seated, the FTC may be even more likely to challenge similar conduct, despite the Ninth Circuit Court of Appeal’s undisturbed ruling in Qualcomm’s favor.

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Novel court ruling offers insight into antitrust exemptions and legitimate competitor communications

April 29, 2021

The District of Columbia District Court recently issued the first judicial interpretation of 49 US Code Section 10706(a)(3)(B)(ii), which sets out an evidentiary exemption relating to certain agreements among railroads. On its face, the decision’s reach appears limited. However, the opinion provides insight into the judicial interpretation of antitrust exemptions and practical reminders for rail and other industries that have legitimate, and sometimes legally protected, communications with competitors.

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Supreme Court clarifies scope of FTC’s powers and prohibits it from common strategy for seeking monetary relief

May 6, 2021

More than four decades after the Federal Trade Commission (FTC) began filing consumer protection actions in federal court for retroactive monetary relief without first completing an administrative proceeding, and more than two decades after it began using this same approach in antitrust cases, the Supreme Court has finally weighed in on the practice, unanimously declaring that it has never been authorized by law.

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Expect more of the same: FTC’s novel challenge to Illumina’s acquisition of Grail

June 3, 2021

On March 30, 2021, the Federal Trade Commission (FTC) filed an administrative complaint challenging the acquisition of Grail, an emerging producer of early detection tests for multiple cancer types, by Illumina, a producer of next-generation DNA sequencing (NGS) platforms which are used by Grail’s (and potentially others’) tests. Simultaneously, the FTC filed an action in a US district court seeking a preliminary injunction, prohibiting the merger until the administrative process could be completed. The preliminary injunction action was recently dismissed with court approval because the FTC asserted that the injunction was not necessary to ensure that the transaction could not close before its administrative proceeding was completed.

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Restructured California Attorney General’s Office: will healthcare antitrust enforcement change?

June 10, 2021

Prior to stepping down as California’s attorney general to assume his new role as Joe Biden’s secretary of health and human services, Xavier Becerra consolidated all aspects of healthcare enforcement under a new Healthcare Rights and Access Section. Antitrust enforcement in healthcare will now be under the auspices of this new section.

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More to Supreme Court’s NCAA decision than just sports

July 1, 2021

There has been a plethora of articles about the Supreme Court’s 21 June 2021 decision upholding a decision that the restrictions imposed by the National Collegiate Athletic Association (NCAA) on education-related compensation to student athletes violate the antitrust laws. Many have opined that the decision signals the death knell of the NCAA; others portend a wave of lawsuits by athletes against the NCAA and US universities. But for those not focused on such matters, the decision is important for the antitrust treatment of joint ventures and to general business decision-making.

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Big tech becomes major target for new antitrust proposals

July 8, 2021

Big tech has become a major target for new antitrust proposals. On June 11 2021, the chairman of the Antitrust Subcommittee of the House Judiciary Committee, Representative David Cicilline (Democrat – Rhode Island) made good on his promise to introduce a series of bills aimed at modernizing the antitrust laws to address concerns raised by the actions of companies such as Facebook, Amazon, Apple and Google.

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FTC changes to merger review process: lifeboat or policy shift?

August 26, 2021

The Biden Administration has sent strong signals of its desire to ramp up aggressiveness in merger enforcement, but a recent flood of filings has caused the Federal Trade Commission (FTC) to announce a couple of changes to its usual merger review process even before it could truly implement any such increased enforcement. While the changes to the merger review process are more modifications of form than substance, they seem partially aimed at emphasizing the agency’s need for additional funding and staff. They may also be an attempt to gain more time to contemplate and implement new policies to invigorate merger enforcement and perhaps realign merger law towards a more progressive view.

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FTC under attack as parties challenge its structure and participation of chairperson

September 16, 2021

At a time when the Federal Trade Commission (FTC) states that it is overwhelmed with merger review matters, its very existence is being attacked in two distinct ways. In one challenge, a party to an FTC administrative proceeding attacked the Commission’s structure on the basis that it was unconstitutional and deprives respondents of due process because the commissioners sit as “judge and jury”. In the other not completely unrelated approach, Amazon and Facebook are each respectively arguing that Chairperson Lina Khan is required to recuse herself from matters involving either company because she had prejudged the matters before her based on her academic writings and other public statements.

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Merger review: FTC attempts to correct “failed experiment”

October 14, 2021

The past three months have seen a variety of pronouncements from voices throughout the Biden Administration about the need to reform antitrust enforcement and, in particular, the need to reform the framework for assessing mergers and acquisitions. Tim Wu, the special assistant to the president for technology and competition, recently confirmed that President Biden believes that the United States has endured a “failed experiment” in its economic approach to antitrust enforcement, an over-reliance on market forces to correct behavior by those with market power, and an over-emphasis on the “consumer welfare” standard in assessing the impact of transactions and potentially anticompetitive behavior.

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