Competition Corner

The U.S. Federal Trade Commission’s new premerger notification form under the Hart-Scott-Rodino (HSR) Act went into effect on February 10, 2025, despite pending challenges by business groups. Accordingly, parties to transactions meeting certain jurisdictional thresholds are required to submit HSR filings using the new form to the FTC and the Antitrust Division of the Department of Justice (DOJ). 

A second Trump administration brings some uncertainty about the trajectory of non-merger antitrust enforcement. Under the Biden administration, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) took an aggressive approach to antitrust enforcement across several industries and were particularly hostile to mergers and acquisitions. President Trump’s nominees to lead the antitrust agencies signal that the new administration is likely to continue current levels of vigorous antitrust enforcement—particularly in Big Tech and other hot-button industries—but will likely relax M&A enforcement and return to more predictable and traditional tools and theories of harm.

On January 8, 2025, Massachusetts Governor Maura Healey signed a new law, House Bill 5159, expanding the state’s existing health care transaction notification requirement and creating new health care reporting requirements for private equity funds, health care real estate investment trusts, management services organizations, and pharmaceutical companies.

In a joint lawsuit filed on January 10, the U.S. Chamber of Commerce, Longview Chamber of Commerce, American Investment Council, and Business Roundtable (collectively, the Plaintiffs) challenge the Federal Trade Commission’s (FTC) recent changes to the premerger notification rules under the Hart-Scott-Rodino (HSR) Act, seeking to block the requirement to use a new HSR form that requires substantially more information and documents than required under the current HSR form.

On January 14, the Antitrust Division of the Department of Justice (DOJ) filed a lawsuit against private equity firm KKR & Co. (KKR), alleging KKR repeatedly violated the Hart-Scott-Rodino (HSR) Act and seeking unprecedented civil penalties of hundreds of millions of dollars. 

On January 7, 2025, the Federal Trade Commission (FTC) imposed a record $5.6 million civil penalty on crude-oil producers XCL Resources Holdings, LLC, Verdun Oil Company II LLC, and EP Energy LLC for alleged “gun-jumping” violations of the Hart–Scott–Rodino (HSR) Act. 

The Federal Trade Commission (FTC) announced on Friday the increased Hart-Scott-Rodino (HSR) Act thresholds for 2025. These thresholds increase the minimum value of transactions that must be notified under the HSR Act to $126.4 million. The new thresholds will become effective for transactions 30 days after publication in the Federal Register.

Antitrust scrutiny of labor markets is far from dead.  Despite the FTC and DOJ Antitrust Division suffering several prominent defeats of major labor antitrust initiatives in recent years—including courts blocking the FTC’s rule banning non-competes and juries rejecting DOJ no-poach prosecutions—the agencies continue to pursue a variety of labor-focused actions.

On December 12, 2024, the Federal Trade Commission (FTC) filed a lawsuit against Southern Glazer’s Wine and Spirits, alleging violations of the Robinson-Patman Act (RPA). This action, filed in the Central District of California, marks the first time in over two decades that the federal government has taken steps to enforce the RPA.

On December 10, President-elect Trump announced that he will elevate current FTC commissioner Andrew Ferguson to be the next Chair of the Federal Trade Commission. In a follow-up post, Trump also announced his selection of antitrust lawyer Mark Meador to serve as a new Republican FTC commissioner.

In a manner that can fairly be described by now as “business as usual,” the Federal Trade Commission and the Department of Justice Antitrust Division issued a press release on Wednesday, December 11, announcing their decision to withdraw another key regulatory guidance document: the Antitrust Guidelines for Collaborations Among Competitors.  

In a Truth Social post published on December 4, President-elect Donald Trump announced his nomination of current transition team advisor on antitrust policy Gail Slater to act as the next leader of the U.S. Department of Justice (DOJ) Antitrust Division.

On November 12, 2024, the Antitrust Division of the U.S. Department of Justice (DOJ) issued updated guidance for evaluating corporate compliance programs in criminal antitrust investigations. Although primarily directed at criminal prosecutors, the 2024 guidance also expressly indicates that companies should expect the civil team to use many of the same factors to evaluate the effectiveness of compliance programs for purposes of civil antitrust violations.

Last week, Donald Trump was elected to serve as the 47th president of the United States. President Trump’s election raises questions about the future of antitrust policy and enforcement, particularly following the major policy shifts and increased scrutiny of mergers and acquisitions under the Biden administration.

The FTC recently appealed a Texas federal court’s decision from August to block the implementation of the FTC’s rule banning worker non-competes.

On October 10, the U.S. Federal Trade Commission unanimously adopted final changes to the premerger notification form required by the Hart-Scott-Rodino (HSR) Act, effective 90 days after publication in the Federal Register, i.e., no earlier than January 8, 2025.

On September 17, 2024, the DOJ’s Antitrust Division withdrew from its 1995 Bank Merger Guidelines and announced that, going forward, it will use the 2023 Merger Guidelines, along with a 2024 Banking Addendum, in evaluating the competitive impact of mergers and acquisitions in the banking industry. The DOJ’s announcement comes roughly three years after President Biden issued an executive order encouraging the DOJ to enhance the enforcement standards set forth in the previous Bank Merger Guidelines. 

In early August, the U.S. Department of Justice (DOJ) entered a consent decree with Legends Hospitality Parent Holdings, LLC (“Legends”) to resolve gun-jumping allegations that Legends improperly exerted operational control over ASM Global, Inc. (ASM) while its HSR filing for its acquisition of ASM remained pending. Although the DOJ allowed the transaction to close, Legends agreed to pay $3.5 million and be subject to seven years of DOJ oversight to resolve the allegations. This action by the DOJ provides a reminder to buyers and sellers of the need to continue operating independently after a deal is signed until closing even when the deal does not present significant antitrust concerns.

The Federal Trade Commission’s rule banning nearly all noncompete agreements with workers was blocked, nationwide, by a Texas federal court on August 20.