This week, the Federal Trade Commission (“FTC”) voted 3-2 along party lines to finalize a rule that bans noncompete clauses in employment agreements as a per se illegal “unfair method of competition” (“UMC”) under Section 5...more
The Federal Trade Commission (“FTC”) and U.S. Department of Justice Antitrust Division (“DOJ”) have proposed to expand dramatically the scope and burden of preparing a merger filing in the United States. The proposed changes...more
7/26/2023
/ Acquisition Agreements ,
Antitrust Division ,
Antitrust Provisions ,
Corporate Sales Transactions ,
Department of Justice (DOJ) ,
Federal Trade Commission (FTC) ,
Hart-Scott-Rodino Act ,
Merger Agreements ,
Merger Controls ,
NPRM ,
Pre-Merger Filing Requirements
In Short -
The Development: The Court of Justice of the European Union ("ECJ") held that national competition authorities ("NCA") may investigate and block an M&A transaction that violates Article 102 of the Treaty on the...more
In early January 2023, the Federal Trade Commission ("FTC") proposed an unprecedented rule banning most employer/employee non-compete clauses. As detailed below, the rule is not likely to take effect for at least eight...more
1/13/2023
/ Comment Period ,
Contract Terms ,
Employment Contract ,
Federal Trade Commission (FTC) ,
FTC Act ,
Non-Compete Agreements ,
Proposed Rules ,
Public Comment ,
Restrictive Covenants ,
Section 5 ,
Unfair Competition
The Federal Trade Commission (“FTC”) released a new Policy Statement of its enforcement priorities for Section 5 of the FTC Act, which makes unlawful “unfair methods of competition.” Since the passage of the FTC Act in 1914,...more
What Is the FTC's New "Prior Approval" Policy? At the end of an FTC investigation into the competitive impact of a merger, the agency may (i) take no action (allowing the parties to close), (ii) challenge the transaction...more
11/4/2021
/ Anti-Competitive ,
Antitrust Provisions ,
Competition ,
Corporate Counsel ,
Corporate Sales Transactions ,
Federal Trade Commission (FTC) ,
Merger Controls ,
Policy Management ,
Policy Statement ,
Regulatory Agenda ,
Regulatory Approval ,
Regulatory Reform
Expansion of FTC's Interpretation of Its Antitrust Enforcement Authority -The Commission majority has reinvigorated a longstanding but dormant debate about the bounds of the FTC's authority under Section 5 of the FTC Act....more
President Biden recently signed an Executive Order on Promoting Competition in the American Economy (the "Order") outlining 72 initiatives by more than a dozen federal agencies to combat "excessive" corporate consolidation...more
The Comisión Federal de Competencia's new guidelines clarify notification requirements for joint ventures and the "failing firm" defense.
Newly revised merger control guidelines ("Guidelines") from the Comisión Federal de...more
Merging parties in all HSR reportable transactions must observe the full 30-day waiting period before closing a deal.
On February 4, 2021, the U.S. antitrust agencies announced that they are temporarily suspending the...more
The Development: Congress unanimously passed and before leaving office, President Trump signed into law, the Competitive Health Insurance Reform Act ("CHIRA"). CHIRA limits application of the McCarran-Ferguson Act, an...more
The Development: The Bundestag, the German legislature, amended Germany's antitrust laws to include special competition rules for digital platform "companies with overwhelming importance for competition across multiple...more
Fortnite game maker Epic Games brings dispute with Apple to Australia, alleging "misuse of market power."
Epic Games, developer of the popular game Fortnite, filed proceedings in the Federal Court of Australia alleging...more
The Anti-Monopoly Bureau ("AMB") of China's State Administration for Market Regulation ("SAMR") recently released four sets of long-awaited anti-monopoly guidelines, including the Anti-Monopoly Guidelines on the Automobile...more
The U.S. Department of Justice's ("DOJ") new remedies guide reinforces its strong preferences for structural divestitures and upfront buyers to resolve merger investigations.
Last week, the DOJ released a new "Merger...more
9/15/2020
/ Acquisitions ,
Antitrust Division ,
Competition ,
Department of Justice (DOJ) ,
Divestiture ,
Federal Trade Commission (FTC) ,
Merger Remedies ,
Mergers ,
New Guidance ,
Private Equity ,
Vertical Mergers
The UK Competition and Markets Authority ("CMA") Final Report in the Market Study into Online Platforms and Digital Advertising proposes the creation of a new regulatory authority and additional regulations to govern the...more
The Development: The U.S. Department of Justice ("DOJ") and a divided Federal Trade Commission ("FTC") released the final version of their Vertical Merger Guidelines, the first revision in more than 35 years. The Guidelines...more
7/15/2020
/ Antitrust Provisions ,
Competition ,
Defense Strategies ,
Department of Justice (DOJ) ,
Diagonal Mergers ,
Federal Trade Commission (FTC) ,
FTC Guidelines ,
Merger Controls ,
Mergers ,
Supply Chain ,
Vertical Mergers
In a decision that extends the FTC's winning streak in the courts of appeals in healthcare provider merger cases, the Eighth Circuit affirmed the Federal Trade Commission's ("FTC") bid to enjoin Sanford Health's acquisition...more
7/8/2019
/ Acquisitions ,
Antitrust Provisions ,
Competition ,
Federal Trade Commission (FTC) ,
Health Care Providers ,
Healthcare ,
Hospital Mergers ,
Hospitals ,
Monopolization ,
Physicians ,
Rural Health Care Providers
California courts are known for the skepticism with which they approach post-employment restrictive covenants. Until recently, however, they have generally enforced covenants restricting individuals from soliciting their...more
New guidance from the Federal Trade Commission's ("FTC") staff describes the FTC's views on "post-order" divestitures and highlights the difficulties in persuading the FTC to abandon its preference for upfront buyers in...more
The Federal Trade Commission, by a 3-2 party-line vote, has settled a vertical merger challenge in exchange for the merging companies' behavioral commitments. The decision and Commissioner statements signal tension for FTC...more
The Trump Administration leadership at the U.S. Department of Justice and Federal Trade Commission have announced reforms regarding merger reviews. This Jones Day White Paper reviews these reforms and their strategic...more
1/15/2019
/ Antitrust Investigations ,
Corporate Counsel ,
Department of Justice (DOJ) ,
Discovery ,
Enforcement Actions ,
Federal Trade Commission (FTC) ,
Foreign Corporations ,
Hart-Scott-Rodino Act ,
Merger Controls ,
Mergers ,
Privilege Logs ,
Trump Administration
The Situation: Between 2013 and 2017, the average length of a U.S. Department of Justice ("DOJ") Antitrust Division merger review increased 65 percent to 10.8 months.
The Response: DOJ announced reforms to improve...more
10/4/2018
/ Acquisitions ,
Antitrust Division ,
Antitrust Provisions ,
Department of Justice (DOJ) ,
Enforcement ,
Federal Trade Commission (FTC) ,
Letters of Request ,
Mergers ,
Regulatory Reform ,
Subpoenas ,
Third-Party ,
Transparency
The Federal Trade Commission (FTC) and two Dallas therapist staffing companies have settled charges that they conspired to fix the wages of contract therapists in violation of the federal antitrust laws. This is the FTC's...more
The Situation: The U.S. Department of Justice Antitrust Division ("DOJ") has adopted new terms in recent consent decrees that enhance DOJ's ability to enforce its settlements, most importantly by lowering the evidentiary...more
2/12/2018
/ Antitrust Division ,
Antitrust Investigations ,
Attorney's Fees ,
Burden of Proof ,
CFIUS ,
Consent Decrees ,
Corporate Counsel ,
Department of Justice (DOJ) ,
Enforcement Actions ,
Evidentiary Standards ,
Federal Trade Commission (FTC) ,
Fee-Shifting ,
Mergers