Competition Corner

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 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). 

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.

The Federal Trade Commission (FTC) announced yesterday the increased Hart-Scott-Rodino (HSR) Act thresholds for 2024. 

For nearly a year, the FTC has foreshadowed the revival of the previously dormant Robinson-Patman Act (RPA). With enforcement of the Act potentially forthcoming, companies need to be able to identify, address, and ideally avoid risks that may be embedded in complex supply chain relationships.

Almost exactly five months after the U.S. Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice (the Agencies) released their draft merger guidelines, the FTC and DOJ issued the final 2023 Merger Guidelines.

Over the past six months, the FTC and DOJ have pushed a unified message regarding antitrust enforcement. 

On February 3, 2023, the Antitrust Division of the U.S. Department of Justice (DOJ) announced that it had withdrawn three policy statements that established certain enforcement “safety zones” or safe harbors for the exchange of competitively sensitive information and benchmarking exercises.

On September 27, 2023, a Louisiana federal court issued a landmark ruling addressing the intersection of the Hart-Scott-Rodino (HSR) Act and the Certificate of Public Advantage (COPA) regimes adopted by various states.

The Federal Trade Commission’s (FTC) continued scrutiny of private equity “roll-up” strategies resurfaced in a recent complaint filed in Texas federal court alleging that the private equity firm Welsh, Carson, Anderson & Stowe (Welsh Carson) and its portfolio company U.S. Anesthesia Partners, Inc. (USAP) entered into a “multi-year anticompetitive scheme to consolidate anesthesiology practices in Texas, drive up the price of anesthesia services provided to Texas patients, and boost their own profits.” 

After a series of withdrawals of key antitrust policy statements and guidance documents and announcing an intention to make changes to the merger guidelines, the Federal Trade Commission and Department of Justice (the Agencies) have released new proposed Merger Guidelines.

With a potential comeback in store for the Robinson-Patman Act, companies need to be able to identify, address, and ideally avoid risks that may be embedded in complex pricing structures and supply chain relationships. 

On June 27, 2023, the Federal Trade Commission (FTC) announced that it will issue a 132-page Notice of Proposed Rulemaking drafted in concurrence with the U.S. Department of Justice (DOJ) that, if implemented, would bring sweeping changes to the U.S. merger review process. The proposed changes would require merging parties reporting transactions under the Hart-Scott-Rodino Act (HSR) to collect and submit to the FTC and DOJ significantly more information than is currently reported in the HSR form, likely significantly lengthening the time and expense associated with reporting transactions under the HSR Act. Indeed, the FTC’s own estimate is that the number of hours required to prepare an average HSR filing will increase nearly four-fold from 37 to 144 hours. Although the FTC states in its press release that the purpose of the proposed changes is to improve the efficiency and effectiveness of merger reviews, the additional burden on merging parties will be substantial. 

In recent months, the Federal Trade Commission has signaled that it is reviving its enforcement efforts under the Robinson-Patman Act (RPA). With the federal government paying heightened attention to this formerly dormant area of law, so too should companies.

In the age of big data and artificial intelligence, businesses are increasingly using algorithms to make important business decisions. This trend raises antitrust concerns that companies need to be aware of. 

On April 14, 2023, the Supreme Court issued a unanimous decision in Axon Enterprise, Inc. v. Federal Trade Commission holding that federal district courts have jurisdiction to hear constitutional challenges to the Federal Trade Commission and Securities and Exchange Commission’s administrative proceedings in the first instance. The Court’s decision will provide parties accused of wrongful conduct by independent agencies with new avenues to more quickly raise constitutional challenges to enforcement actions.