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FTC Issues Its Financial Report for Fiscal Year 2020

On November 16, 2020, the Federal Trade Commission (“FTC”) issued its annual financial report. For the seventh consecutive year, the FTC has made the determination to issue an annual financial report and separately issue (in...more

FTC Commissioners Question Use of Divestiture as an Effective Merger Remedy

Divestiture has long been considered an appropriate and effective remedy for anticompetitive horizontal mergers. The Federal Trade Commission (“FTC”), as reflected in the Statement of the Bureau of Competition entitled...more

FTC Issues Advance Notice of Proposed Rulemaking

On September 21, 2020, the Federal Trade Commission (“FTC”) announced that it was issuing an Advance Notice of Proposed Rulemaking (“ANPRM”) related to the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”) and its...more

FTC Moves to Revamp and Increase Merger Retrospective Reviews

On September 17, 2020, the Federal Trade Commission (“FTC”) announced efforts to revamp and increase its retrospective research efforts. This retrospective analysis, which has been a continuing project for the FTC, “seeks to...more

Do the New FTC/DOJ Vertical Merger Guidelines Provide Clarity?

On June 30, 2020, the Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) released final Vertical Merger Guidelines. As noted previously, the agencies had issued draft guidelines that were subject to...more

The FTC’s Annual Report Shows Continued Interest in Health Care

In April 2020, the Federal Trade Commission (“FTC”) released its annual report for 2019. The FTC’s annual report details the FTC’s actions over the prior year. In 2019, similar to other years, the health care industry...more

Almost Business as Usual for Antitrust Enforcers

Antitrust enforcers from the Federal Trade Commission (“FTC”), during a roundtable discussion at this year’s virtual spring meeting of the American Bar Association’s Antitrust Law Section, proclaimed that, with certain...more

DOJ and FTC Announce Expedited Review Process for COVID-19 Requests

On March 24, 2020, the Federal Trade Commission (“FTC”) and the U.S. Department of Justice (“DOJ”) announced that they would expedite antitrust guidance for COVID-19 public health projects. In the agencies’ joint statement,...more

Expect Delays in the HSR Clearance Process Due to the Coronavirus Pandemic

The Premerger Notification Office of the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) announced that their review of Hart-Scott-Rodino (“HSR”) filings will continue despite...more

FDA and FTC Join Forces to Promote Biosimilars

The U.S. Food and Drug Administration (“FDA”) and the Federal Trade Commission (“FTC”) (collectively, the “Agencies”) have a long history of teaming up to ensure that advertising and other promotional communications for...more

Reporting Thresholds Under Hart-Scott Rodino Will Increase on February 27

Adjustments to the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“Act”) will become effective on February 27, 2020. At that time, the minimum size-of-transaction threshold goes up to $94...more

A New Antitrust “Safety Zone” for Vertical Mergers

The U.S. Department of Justice and the Federal Trade Commission (collectively, “Agencies”) recently released for public comment their much-anticipated draft Vertical Merger Guidelines (“Guidelines”) that purport to “outline...more

Use of a Common Agent Can Raise Antitrust Concerns

Providers that are not financially or clinically integrated must keep separate operations. This can extend to the use of a common agent for the non-integrated providers. The U.S. Department of Justice and Federal Trade...more

The FTC Explains How It Determines Whether a Transaction Is Structured for the Purpose of Avoiding the Hart-Scott-Rodino Antitrust...

How a transaction gets structured raises a multitude of issues, including whether the transaction might be reportable under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”). Structuring a transaction for the purpose...more

Will Price Transparency Benefit Consumers or Facilitate Antitrust Violations?

This past June, President Trump issued an Executive Order on Improving Price and Quality Transparency in American Healthcare to Put Patients First (“Order”), intending to increase price and quality transparency for American...more

The Failing Firm Defense Is an Absolute Defense to an Otherwise Anticompetitive Merger

The fact that a merger might be anticompetitive is not a reason to prohibit a transaction if all of the elements of the “failing firm defense” are met, as described below.  In fact, the antitrust agencies have long recognized...more

The Numbers Are In: The Recently Released Hart-Scott-Rodino Annual Report for Fiscal Year 2018 Provides an Overview of Antitrust...

On September 16, 2019, the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) released their combined Hart-Scott-Rodino Annual Report (“Report”) for fiscal year 2018 (covering the...more

Identifying 4(c) and 4(d) Documents for HSR Filings

When submitting a Hart-Scott-Rodino (“HSR”) Premerger Notification and Report Form and documentary attachments, parties are required to include what are known as “4(c) documents” and “4(d) documents.” Under the HSR...more

Are Efforts to Speed Up Antitrust Merger Reviews Working?

Last September, Makan Delrahim, the Assistant Attorney General for the Antitrust Division of the Department of Justice (“DOJ”), announced efforts to streamline antitrust merger reviews with a stated goal of completing the...more

Seeking Opinions on Potential Conduct from the Antitrust Division of the Department of Justice

The Antitrust Division of the Department of Justice (“DOJ”) has a process that allows organizations to seek written opinions from the agency on whether proposed conduct will violate the antitrust laws. (The Federal Trade...more

FTC Submits Comments on Proposed “Information Blocking” Rule in Effort to Protect Market Competition

On June 6, 2019, the Federal Trade Commission (“FTC”) submitted a comment letter regarding a proposed rule by the Department of Health and Human Services’ Office of the National Coordinator for Health Information Technology...more

State Attorneys General Look to Flex Antitrust Enforcement Muscle

Until recently, state and federal enforcers shared a common outlook in their approach and goals for antitrust enforcement. Most state antitrust laws mirror federal laws, and a consistent approach to antitrust enforcement has...more

FTC Schedules Final Hearing on Competition and Consumer Protection

On May 31, the Federal Trade Commission (“FTC”) posted the agenda for its final hearing in the “Competition and Consumer Protection in the 21st Century” series. The hearing will take place on June 12, 2019. The FTC has...more

Another Important Voice in Support of Retrospective Antitrust Reviews

In our last Antitrust Byte, we brought to your attention Federal Trade Commission (“FTC”) Commissioner Rebecca Slaughter’s support for retrospective reviews of vertical transactions. Not to be overlooked, however, is Chairman...more

Third Circuit Curtails FTC’s Ability to Seek Judicial Review of Past Antitrust Violations

The Federal Trade Commission Act (“Act”) declares “unfair methods of competition to be unlawful” and gives the Federal Trade Commission (“FTC”) multiple tools to combat such conduct. Section 5(b) of the Act provides the FTC...more

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