![]() ![]() ![]() On January 18, 2022, the FTC and DOJ issued a joint notice for public comments “on how the agencies can modernize enforcement of the antitrust laws regarding mergers.” This inquiry is focused on both the 2020 Vertical Merger Guidelines and the 2010 Horizontal Merger Guidelines (which currently remain in place at both agencies). The DOJ’s pending litigation of UnitedHealth’s proposed acquisition of Change Healthcare and the FTC’s ongoing review of Microsoft’s proposed acquisition of Activision Blizzard will likely be important litmus tests for the agencies’ vertical enforcement. Several weeks later, the parties abandoned the transaction, due, in part, to the FTC’s lawsuit. For example, in January 2022, the FTC voted 4-0 (i.e., across party lines) to issue a complaint to block Lockheed Martin’s vertical acquisition of Aerojet Rocketdyne, in what would have been the FTC’s first defense industry merger litigation in decades. On the same day, the DOJ announced that it is also conducting a review of the Vertical Merger Guidelines, stating it has “already identified several aspects of the guidelines that deserve close scrutiny.” Ĭonsistent with these moves, both the FTC and the DOJ appear intent on more scrutiny for and challenges of non-horizontal mergers. On September 15, 2021, the FTC withdrew its approval of the Vertical Merger Guidelines, without putting any new guidance in place for non-horizontal mergers in particular, the FTC viewed the prior guidelines as taking a “flawed approach” towards asserted procompetitive benefits of mergers. ![]() The FTC and DOJ both were quick to announce that they are revisiting the 2020 Vertical Merger Guidelines, as “encouraged” by the Executive Order. Reconsidering the Vertical Merger Guidelines and carefully scrutinizing vertical mergers Certain areas of key focus by the agencies over the last year are described below. ![]() Since then, the FTC and DOJ have taken a number of steps to pursue more aggressive antitrust enforcement. FTC and DOJ have been conducting intensive merger and conduct investigationsįTC Chair Lina Khan was sworn in on J(approximately three weeks before President Biden’s Executive Order) and DOJ’s Assistant Attorney General (“AAG”) for Antitrust Jonathan Kanter was confirmed to his position on November 16, 2021. įor further details on the Executive Order, please see Davis Polk’s prior Client Update regarding issuance of the Executive Order. This Update focuses on the Federal Trade Commission’s (“FTC”) and the Department of Justice Antitrust Division’s (“DOJ”) antitrust enforcement activity over the last year under this Executive Order’s direction. The Executive Order highlighted several particular sectors of concern (namely agriculture, information technology, healthcare and prescription drugs, telecommunications, and labor, including a focus on non-compete provisions that impact workers), but the call for stronger antitrust enforcement was economy-wide. This Executive Order affirmed that it is a central goal of the Biden Administration to ensure that antitrust laws in the U.S. On July 9, 2021, President Biden issued a sweeping proclamation on competition in the American economy, asserting that there has been too much consolidation across many different economic sectors and that this consolidation has harmed workers, farmers, small businesses, startups, and consumers, and has led to vast racial, income, and wealth inequalities. Background on President Biden’s Executive Order on Promoting Competition in the American Economy ![]()
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