Competition Corner

On March 18, President Donald Trump fired the Federal Trade Commission’s two remaining Democratic commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter, in an unprecedented move that will likely be litigated to the Supreme Court. 

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.

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.  

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.

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. 

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).