As reflected in the December 2023 merger guidelines, the Federal Trade Commission and the US Department of Justice have changed the way they think about out-of-market effects, i.e., competitive effects that arise outside the relevant market.
In this Law360 article, Lisa Rumin and Anthony Ferrara unpack this new approach, which was prominently demonstrated during the JetBlue Airways-Spirit Airlines merger, and provide practical considerations on the implications for firms contemplating mergers and acquisitions.
The American Bar Association Antitrust Law Section’s annual Spring Meeting concluded on April 12. The annual Spring Meeting featured updates from federal, state and international antitrust enforcers and extensive discussion on priority antitrust issues affecting various industries. In this article, we highlight takeaways from the final two days of the Spring Meeting.
The American Bar Association Antitrust Law Section’s annual Spring Meeting is underway in Washington, DC. The annual Spring Meeting features updates from federal, state and international antitrust enforcers and extensive discussion on priority antitrust issues affecting various industries. In this article, we highlight the key takeaways from the first portion of the Spring Meeting.
The Federal Trade Commission (FTC) and the US Department of Justice (DOJ) are updating their standard preservation notices and instructions for responding to all manner of discovery (e.g., second requests, voluntary access letters, compulsory process, etc.). The update will alert parties to the steps that must be taken to preserve communication from popular business collaboration tools and “ephemeral messaging platforms” like Slack, Microsoft Teams and Signal.
These platforms are typically set to delete communication data automatically and may lack appropriate capabilities for preserving and extracting data even when a preservation notice is issued. While these tools have become central features in the modern business landscape, the Agencies’ announcement is designed to clearly set out the expectation that companies and individuals will adhere to preservation requirements. Parties could be subject to criminal obstruction of justice charges if they fail to comply.
Highlighting the very serious concern these tools raise in the DOJ’s view, Manish Kumar, Deputy Assistant Attorney General for the DOJ’s Antitrust Division, asserted that ephemeral messaging platforms are “designed to hide evidence.”
WHAT HAPPENED
On January 26, 2024, the DOJ and FTC (the Agencies) announced an update to their preservation notices and instructions for responding to all manner of discovery to “address the increased use of collaboration tools and ephemeral messaging platforms in the modern workplace” and “reinforce longstanding obligations requiring companies to preserve materials during the pendency of government investigations and litigation.”
The Agencies recognize that ephemeral chat messaging is becoming an increasingly important feature of the modern business landscape, and they have sought to collect ephemeral messaging data in the past. However, because these platforms are typically set to delete messages automatically and may lack clear solutions for preserving data, the Agencies have run into dead ends trying to collect such data in prior cases. Indeed, Manish Kumar, Deputy Assistant Attorney General for the DOJ’s Antitrust Division stated that “these updates to our legal process will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages.”
This new preservation language will be included in all DOJ and FTC preservation letters, second request specifications, voluntary access letters, compulsory legal process and grand jury subpoenas going forward.
While the new language changes are a continuation of the Agencies’ existing preservation policies, they will highlight parties’ obligations with respect to ephemeral messaging data specifically, potentially making it easier for the Agencies to seek sanctions and other recourse against companies who fail to preserve such data.
Indeed, the Agencies’ announcement cites a prior case where civil spoliation sanctions resulted from a target’s failure to properly preserve ephemeral messaging data. Likewise, the FTC has also signaled its willingness to refer cases to the DOJ Antitrust Division’s Criminal Liaison Unit for criminal obstruction charges in certain cases.
WHAT THIS MEANS
The Agencies have recognized in recent cases that relevant business communications that used to happen over email are [...]
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.
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.
A recent announcement by multiple federal agencies has highlighted their intention to enforce their separate regulations against developers, deployers and users of AI systems. Federal Trade Commission (FTC) Chair Lina Khan and officials from the US Department of Justice (DOJ), the Consumer Financial Protection Bureau (CFPB) and the US Equal Employment Opportunity Commission (EEOC) each reinforced their worries about automated systems, citing civil rights, fair competition, consumer protection and equal opportunity concerns. Their serious language, joint public commitment and previous enforcement actions in this area make this statement no simple theater.
With growing consumer demand for environmentally friendly products and services, businesses are ramping up their “green” advertising endeavors to showcase eco-friendly credentials like carbon emissions reductions, renewable energy and recycled materials. In light of this surge in “going green” marketing, the Federal Trade Commission (FTC) has proposed revisions to its Guides for Use of Environmental Marketing Claims (Green Guides). The aim is to furnish companies with supplementary guidance on the types of environmental claims that can be made and the necessary substantiation required to steer clear of legal disputes, penalties or unfavorable public perception. These revisions could significantly impact advertisers that make “green” claims by requiring more specificity and more substantiation than before.
In March 2023, the Federal Trade Commission (FTC) proposed tightened requirements of the Negative Option Rule. This is an effort to combat unfair or deceptive practices, such as charging customers for recurring products or services that they don’t want and can’t cancel easily. Negative options refer to features like automatic renewals, prenotification plans, free-to-pay and fee-to-pay conversions, and continuity programs.
The FTC seeks to increase the requirements for negative options to prevent marketers from deceiving or making it difficult for consumers to cancel or opt out of subscriptions, notifications or similar programs. The proposed regulations aim to avoid any hindrance or deception to consumers who want to opt out or cancel.
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