The Trump administration has taken significant steps to reshape antitrust enforcement by exerting greater control over the Federal Trade Commission (FTC), firing two Democratic FTC commissioners. Leadership has also begun to outline more of their priorities in speeches and interviews. These changes outline antitrust enforcement priorities, with a stronger emphasis on economic analysis and litigation against Big Tech, healthcare, and a continuing focus on labor market issues.
Antitrust Under Trump: Initial Policies and Actions
The Trump administration has initiated significant changes in antitrust policy through key appointments and policy announcements. The administration announced that the Federal Trade Commission (FTC) and US Department of Justice (DOJ) will continue using the 2023 Merger Guidelines and expressed support for new Hart-Scott-Rodino (HSR) rules. Additionally, the FTC outlined its goals, which include improving the merger review process by moving more quickly, accepting settlements where warranted, and combating Big Tech censorship.
New HSR Rules Go Live: Your Playbook for Effective M&A
Starting today, February 10, 2025, all merger filings will be subject to new Hart-Scott-Rodino (HSR) rules. The new HSR rules will fundamentally alter the premerger notification process, and substantially increase the burden on filing parties, who will need to provide significantly more information and documents with their initial filings.
Companies can take steps today to make filings under the new rules less burdensome and increase the likelihood of achieving antitrust clearance, such as collecting and regularly updating the “off-the-shelf” information needed for all filings, and engaging in earlier discussions with the legal team to identify potential overlaps and supply relationships and develop key themes around transaction rationales and impacts on competition that will need to be included in the filing.
Unpacking the Biden Administration’s Last-Minute Antitrust Worker Protections
In the final week of the Biden administration, the Federal Trade Commission and US Department of Justice released two policies potentially impacting labor markets. The first is a Policy Statement on the Exemption of Protected Labor Activity for Independent Contractors, and the second is the Antitrust Guidelines on Business Practices that Impact Workers.
The policies address antitrust law as applied to independent contractors, especially gig workers, by contemplating new antitrust liability protection similar to the existing antitrust exemption for collective action by employees. They also list various business practices that could violate antitrust laws, impacting how companies manage their labor practices.
Companies should review their labor practices and agreements to ensure compliance with the new guidelines. Legal teams should stay informed about potential changes under the new administration and prepare for possible revisions or repeals of these policies. In the meantime, these policy statements and guidelines reflect agency positions and do not themselves change applicable law. The National Labor Relations Act continues to statutorily exclude independent contractors from unionization rights and processes.
FTC Publishes Annual Merger Notification Jurisdictional Threshold and Filing Fee Adjustments
On January 10, 2025, the Federal Trade Commission (FTC) released increased jurisdictional thresholds, 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 premerger notification regime requires transacting parties to notify the FTC and US Department of Justice (DOJ) of their intent to consummate a transaction that meets or exceeds certain jurisdictional thresholds, unless an exemption applies. 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 HSR thresholds are adjusted annually based on gross national product (GNP). The threshold changes are as follows:
- The base statutory size-of-transaction threshold, the lowest threshold requiring notification, will increase to $126.4 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 $505.8 million.
- The statutory size-of-person lower and upper thresholds (which will apply to deals valued above $126.4 million but not above $505.8 million) will increase to $25.3 million and $252.9 million, respectively.
HSR Filing Fee Changes
The FTC is also required to update filing fee thresholds and amounts on an annual basis. Filing fee thresholds are adjusted based on the percentage change in GNP and filing fee amounts are adjusted based on the percentage change in the Consumer Price Index. These changes will also take effect 30 days after publication of the notice in the Federal Register.
The adjusted filing fee thresholds and fee amounts are provided in the table below.
