The American Bar Association Antitrust Law Section held its annual Spring Meeting from April 2 to 5 in Washington, DC, where federal, state, and international antitrust enforcers shared key updates and enforcement priorities. At the Spring Meeting, antitrust agencies signaled continued scrutiny of mergers, noncompete agreements, and Big Tech – plus an uptick in state-level enforcement and continued consumer protection activity – regardless of changes in administration.
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.
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.
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.
On January 20, 2025, President-elect Donald J. Trump’s administration will come into power. The McDermott antitrust and competition team has analyzed the first Trump term, compared it to the Biden administration’s actions, and reviewed statements from those involved in the upcoming Trump administration. While it appears that the new administration will be good for business, especially for companies planning to expand through mergers and acquisitions, this client alert takes a closer look at what is likely to change and what is likely to stay the same in antitrust enforcement throughout the next four years.
Read more here.This week, the American Bar Association’s Antitrust Law Section kicked off its annual Spring Meeting in Washington, DC, which features updates from the antitrust enforcers and substantive discussions on today’s most pressing antitrust issues. In this post, we share key takeaways from the first day of the Spring Meeting.
Agencies Continue to Be Hostile to M&A: Republican Federal Trade Commission (FTC) Commissioners Noah Phillips and Christine Wilson emphasized that the prevailing view under Democratic leadership at the antitrust agencies is that mergers provide no value and only carry costs.
Increased Antitrust Litigation Is on the Horizon: DOJ officials said companies should expect an increase in antitrust litigation on both civil and criminal matters.
Updated Merger Guidelines Are Coming: Officials from both the FTC and [...]
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The second quarter of 2019 proved to be a busy season for antitrust matters. In the United States, agencies continued to be aggressive and blocked transactions or required significant remedies. They cleared three mergers where divestitures were required; and in the face of FTC or DOJ opposition, companies abandoned several transactions, including between Republic National Distribution Company and Breakthru Beverage Group. Regarding vertical transactions, we continued to see a split between the FTC Republican and Democratic Commissioners regarding whether enforcement is required and the appropriate remedies.
In the European Union, the EC published a report on competition policy for the digital era, which deals with, among other things, acquisitions of nascent competitors. The EC also closed two merger control proceedings subject to divestitures, blocked a proposed joint venture, and showed that it will seek large fines for companies violating EU competition rules for merger notifications.
The first quarter of 2019 proved to be as active as ever for antitrust regulators in both the United States and Europe. In the United States, vertical merger enforcement was the focus of a few high-profile matters. The US DOJ has been working on an update to the Non-Horizontal Merger Guidelines, possibly providing clarification for merging parties.
Meanwhile in Europe, although the European Commission cleared a number of merger control proceedings with remedies, the European Commission also blocked two transactions during the first quarter of 2019.
Hélène de Cazotte, a trainee in the Firm’s Brussels office, also contributed to this publication.
United States: January – March 2018 Update
One year into the Trump administration, the US antitrust agencies are finally starting to implement their enforcement policies. Most notably, trial began in the US Department of Justice’s (DOJ) challenge of the AT&T/Time Warner merger, which is the Antitrust Division’s first significant vertical challenge in several decades. Judge Richard J. Leon’s opinion in that case could alter the outlook for several other vertical transactions pending before the agencies. While the DOJ was preparing for trial, the Federal Trade Commission (FTC) was preparing for a transition to five new commissioners, who were approved by the Senate in April. It remains unclear whether the new, Republican-led FTC will be more moderate in its enforcement efforts, similar to prior Republican administrations, or will follow in the footsteps of President Trump’s DOJ, which has been surprisingly aggressive.
EU: January – March 2018 Update
The European Commission (EC) continued to be quite active in the first quarter of 2018, clearing five mergers. The most significant decision was the approval of a megamerger in the agrochemical sector—Bayer/Monsanto—where the parties submitted a remedy package that totalled over €6 billion. This remedy package included divestitures of research and development assets that addressed the EC’s concerns about innovation, similar to the EC’s Dow/DuPont clearance last year. In addition to Bayer/Monsanto, two other proposed acquisitions in the chemicals sectors fell through, most notably Celanese/Blackstone, due to excessive divestiture requests required by the Commission. (more…)
In the course of one week, two top level DOJ Antitrust officials in the Trump Administration separately spoke at panels and suggested the possibility of a sea change in federal antitrust law with respect to indirect purchaser lawsuits. The comments further reinforce the Administration’s active focus on antitrust issues.
WHAT HAPPENED:
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