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ANTITRUST ALERT
A Global Resource for Compliance Officers & Legal Advisors
ANTITRUST ALERT
A Global Resource for Compliance Officers & Legal Advisors
Mergers & Acquisitions
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FTC Announces Annual Merger Notification Threshold and Filing Fee Adjustments

by , and | Jan 23, 2024 | , , ,

On January 22, 2024, the Federal Trade Commission (FTC) announced increased jurisdictional thresholds, increased filing fee thresholds and filing fee amounts for merger notifications made pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).

Merger Notification Threshold Changes

The HSR Act compels transacting parties to notify the FTC and US Department of Justice (DOJ) of their intent to consummate a transaction if such a transaction meets or exceeds certain jurisdictional thresholds, barring an exemption. The adjusted thresholds apply to all transactions that close on or after the effective date, which will be 30 days after the notice is published in the Federal Register.

The FTC amends the merger notification jurisdictional thresholds on an annual basis based on changes in the gross national product (GNP).

  • The base statutory size-of-transaction threshold, the lowest threshold requiring notification, will increase to $119.5 million.
  • The upper statutory size-of-transaction test, requiring notification for all transactions that exceed the threshold (regardless of the size-of-person test being satisfied), will increase to $478 million.
  • The statutory size-of-person lower and upper thresholds (which apply to deals valued above $119.5 million but not above $478 million) will increase to $23.9 million and $239 million, respectively.

Merger Filing Fee Increases

Following the passage of the Merger Filing Fee Modernization Act, the FTC is required to revise filing fee thresholds and filing fee amounts each year. Filing fee threshold changes are based on the percentage change in GNP, and filing fee amounts are based on the percentage increase, if any, in the Consumer Price Index (CPI). As with the merger notification thresholds, the filing fee threshold and filing fee amount adjustments take effect 30 days after publication of the notice in the Federal Register.

The revised filing fee thresholds and filing fee amounts are provided in the table below.



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New FTC, DOJ Merger Guidelines Create Challenges and Opportunities

by , , and | Dec 21, 2023 | , ,

The US Federal Trade Commission (FTC) and US Department of Justice Antitrust Division (DOJ) issued their updated Merger Guidelines on December 18, 2023. These guidelines represent a significantly more enforcement-oriented approach than the prior guidelines, and they largely follow the contours of draft guidelines released in July 2023. Companies should be aware of the Merger Guidelines and their implications as they formulate strategies for assessing potential merger and acquisition options.

Read more here.



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Antitrust M&A Snapshot | Q2 2023

by , , , , , and | Jul 31, 2023 | , , , , ,

Topics covered in this edition:

  • FTC Unveils Proposal Detailing Significant Changes to Hart-Scott-Rodino Act Merger Notifications
  • Assa Abloy Settlement Raises Questions on Litigating the Fix and DOJ Consent Decrees
  • Pharmaceutical Industry Remains in Regulators’ Crosshairs
  • “Whole of Government” Competition Mandate Can Impact Deals the FTC and DOJ Do Not Challenge
  • FTC’s Constitutionality Comes Under Fire—Again
  • Divergent Viewpoints in Video Games Sector: Microsoft’s Takeover of Activision Blizzard
  • New Merger Simplification Package from the EC

Access the full issue.



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Proposed Merger Guidelines Outline Fundamental Change of Approach to Merger Investigation and Enforcement

by , , , , , , , and | Jul 25, 2023 | , ,

Mergers and acquisitions will continue to face strong headwinds at the Federal Trade Commission and the US Department of Justice under new proposed Merger Guidelines released on July 19, 2023. The Proposed Guidelines embody the antitrust agencies’ aggressive posture toward merger enforcement under the Biden administration. This On the Subject highlights the most significant changes in the Proposed Guidelines and what steps companies contemplating mergers and other transactions should take in the face of these changes.

Read more here.



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FTC Releases Proposed Changes to Premerger Notification Form and Process

by , , , and | Jun 30, 2023 | , ,

The Federal Trade Commission (FTC) has proposed, for comment, significant changes to the information and documents to be submitted with premerger filings—even in transactions that do not raise significant antitrust issues. The changes proposed may not take effect and may be different when finalized. But if promulgated as proposed, every Hart-Scott-Rodino (HSR) filing will be more difficult and time-consuming, and transactions that might raise even marginal antitrust issues will require significant up-front work.

Read more here.



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The Potential Benefits of New EU Merger Control Rules

by , and | Jun 9, 2023 | ,

The European Commission recently adopted and published a package to simplify the procedures for reviewing concentrations under the EU Merger Regulation. The goal of the package is to simplify merger review procedures, with a targeted 25% reduction on reporting requirements.

In this Law360 article, McDermott Partners Jacques Buhart, Stéphane Dionnet and Frédéric Pradelles examine the new regulations and analyze their impact on businesses and advisers.

Access the article.



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EU Commission Adopts New Merger Simplification Package

by , , , and | May 12, 2023 | , ,

On April 20, 2023, the EU Commission (Commission) adopted and published a package to simplify the procedures for reviewing concentrations under Regulation (EC) 139/2004 of January 20, 2004 (European Union Merger Regulation – EUMR). This package includes a set of three materials comprising (i) a revised Merger Implementing Regulation (Implementing Regulation), (ii) a Notice on Simplified Procedure (Notice), and (iii) a Communication on the Transmission of Documents to the Commission (Communication). The new notification forms (Form CO, Short Form CO, Form RS and Form RM) are also provided as Annexes to the Implementing Regulation.

The core objective of the package is to simplify merger review procedures, with a targeted 25% reduction on reporting requirements. This evolution is more than welcome, especially in light of the very recent Regulation on foreign subsidies distorting the internal market (FSR) which recently entered into force, imposing additional burdens on M&A transactions. We discuss this recent entry into force of the new FSR in our last article, available here.

This new package intends to bring significant benefits for businesses and advisers in terms of easing preparatory work and related costs. Relieving this administrative burden lying on the parties to a concentration should hopefully speed up the approval process by the Commission. The new package will apply from September 1, 2023.

Read More Here.



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CMA Blocks Microsoft’s Acquisition of Activision Blizzard; ‘Game Over’ for Behavioral Remedies?

by and | May 8, 2023 | ,

The Competition and Markets Authority (CMA) blocked what would have been the largest deal in the gaming industry to date on April 26, 2023. This decision brings attention to various significant trends, including:

  • In dynamic markets, regulators are focusing in on whether a deal harms or could harm future competition (i.e., innovation based on predications raising significant uncertainties). The CMA speculated that the deal would “alter the future of the fast-growing cloud gaming market” and preferred to maintain the status quo with the block.
  • Regulators are focusing more and more on non-horizontal relationships and supply chain issues, particularly if one party is vertically integrated. Whereas in the past, concerns could often be remedied via behavioral commitments, more and more deals with a vertical component are now being outright prohibited.
  • While the industry expects the European Commission (Commission) to accept the behavioral remedy (license package) offered by Microsoft, this case shows once again that the CMA and the Commission can reach different conclusions when reviewing the same transaction.

Read more here.

Transaction Lawyer Nils Stock contributed to this article.



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Antitrust M&A Snapshot | Q1 2023

by , , , , and | Apr 20, 2023 | , , , , ,

Topics covered in this edition:

  • Christine Wilson Resigns as FTC Commissioner
  • FTC/Department of Justice Horizontal Merger Guidelines Delayed
  • Agencies Maintain Focus on Private Equity, Especially in Healthcare
  • Continuing a Trend: FTC Loses Challenge to Meta’s Acquisition of Within
  • Agencies Continue to Challenge Transactions Outright Rather than Negotiate Settlements
  • New Regulatory Burden: The EU Foreign Subsidies Regulation Enters into Force
  • A New Route for Complainants: ECJ Towercast Ruling Confirms Non-Notifiable Acquisition Can Be Abuse of Dominant Position
  • CMA’s New Leadership Team Focuses on Digitalisation and Supply Chain Issues Impacting Consumers

Access the full issue.



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Heard at the 2023 Spring Meeting: Part 2

by , , , , , , , and | Apr 5, 2023 | , , , , ,

The American Bar Association’s Antitrust Law Section held its annual Spring Meeting in Washington, DC, on March 29–31, 2023. The Spring Meeting sessions featured updates from federal, state, and international antitrust enforcers and thought-invoking discussions on leading antitrust issues facing the business community today. Following Part 1, this post summarizes key takeaways from the second portion of the Spring Meeting, including updates regarding premerger notification filings, labor markets, state antitrust enforcement, compliance programs, national security, consumer protection, interlocking directorates, and remedies.

FTC Zeros in on Missing Material in HSR Filings

  • Federal Trade Commission (FTC) Bureau of Competition Director Holly Vedova underscored the consequences of failing to submit Item 4 material in HSR filings. She noted the FTC will bounce filings found to have missing Item 4 documents. If the waiting period has not expired and newly surfaced documents change the scope of the request, the FTC may issue a Second Request. If the waiting period has expired when consequential missing material is realized, the FTC will require a corrective filing for the original transaction and may impose “significant” civil penalties.
  • Vedova also reminded practitioners that changes in a merger agreement can require an additional HSR filing. If material changes are made before the waiting period expires, parties should proactively reach out to the FTC to inquire as to whether further action is needed. Parties may need to amend their original filing or submit a new one entirely.

Labor Markets Remain High Priority

  • The antitrust enforcement agencies have promised continued, fervent action in labor markets. In keeping with this promise, this January, the FTC issued a proposed rule that would make it illegal to enter into or maintain noncompete agreements with employees or independent contractors.
    • FTC Chair Lina Khan emphasized that noncompetes impede business dynamism, innovation, and entry, and eliminating noncompetes is estimated to return $300 billion back into the pockets of American workers.
    • FTC Commissioner Rebecca Kelly Slaughter pointed to California as an innovator in labor market enforcement, citing its prohibition on noncompetes. FTC enforcers encouraged the continued submission of public comments on the proposed rule. The comment period is set to close on April 19, 2023.
    • Wisconsin Assistant Attorney General Gwendolyn Cooley also noted that enforcing noncompetes has been a hallmark of state enforcement, especially in New York and Washington, and additional states are considering legislation that would ban noncompetes.
  • The Department of Justice (DOJ) Antitrust Division’s Acting Director of Criminal Enforcement Emma Burnham and the Chief of DOJ’s Criminal II Section James Fredericks noted practitioners should expect an uptick in criminal cases in the labor and employment space. DOJ Antitrust Division’s Deputy Assistant Attorney General Jonathan Kanter stressed that antitrust crimes focused on workers are just as important as those focused on consumers.
  • New York’s antitrust chief, Elinor Hoffman, indicated that New York is focused on labor issues, including no-poach agreements and noncompete clauses that may arise during merger reviews. [...]

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