Competition Corner

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.

On July 31, 2024, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly hosted the first public meeting of the “Strike Force on Unfair and Illegal Pricing.” This initiative was launched by President Biden in March 2024 where he emphasized the readiness of the DOJ and FTC to enforce the law in response to “illegal pricing practices that are fraudulent or unfair or deceptive or anticompetitive.”

A federal district court in Texas granted a preliminary injunction staying enforcement of the Federal Trade Commission’s recently adopted rule banning nearly all non-competes with workers. The decision is strongly critical of the FTC rule and finds that the plaintiffs are substantially likely to succeed in their challenge to the non-compete ban on the basis that the rulemaking was beyond the FTC’s statutory authority and was arbitrary and capricious. 

Health care companies and stakeholders should be prepared for an uptick in antitrust complaints and investigations in the short term, driven by the launch of HealthyCompetition.gov. Despite the anticipated short-term impact, the long-term impact remains uncertain and depends on the sustained engagement and use of the tipline by the public.

On April 23, 2024, the U.S. Federal Trade Commission promulgated a final rule banning non-compete clauses in contracts with employees and other workers (the Rule). 

AAG Blizzard’s announcement marks the latest in a trend of increasing focus and scrutiny from state-level antitrust enforcement agencies. This change suggests that many states are standing ready to address antitrust enforcement if federal enforcement, which has been reinvigorated under the Biden administration, is weakened.  

Less than three weeks after the European Union’s (EU) Digital Markets Act (DMA) took effect on March 7, 2024, the European Commission announced on March 25, 2024 that it is opening investigations into Apple, Google, and Meta for suspected noncompliance with its new directives.

In the latest step in the U.S. antitrust agencies’ heightened enforcement against private equity, the Federal Trade Commission held a Workshop on Private Equity in Health Care yesterday with the U.S. Department of Justice and Department of Health and Human Services.

Chair Lina Khan of the Federal Trade Commission (FTC) recently addressed the FTC’s first Technology Summit on Artificial Intelligence. In her opening remarks, she expressed excitement about the event, highlighting the diverse expertise of the panelists and commending the efforts of the Office of Technology.