Summary: Understanding the context of the Chevron doctrine decision is important to prepare for the unpredictability of antitrust enforcement. Our recommendations for in-house counsel help to jumpstart your game plan.
While the ultimate impact of the Supreme Court’s decision to overturn the Chevron doctrine in Loper Bright Enterprises v. Raimondo has yet to be seen, the short-term impact is unpredictability, particularly in the area of antitrust enforcement. In a recent article in Corporate Counsel, “Chevron’s Legacy Ends: What In-House Counsel Need to Know About HSR Filings Now,” Corey Roush, a partner at Sidley, and I covered some important history to contextualize this change and offered in-house counsel some important tips on how to prepare for this new landscape.
As we write in the piece, “In this fluid regulatory landscape, thorough preparation is the strongest defense.”
It’s important to understand the context and history of the Chevron doctrine, the implications of its overturning in Loper Bright, as well as background on the roles the FTC and DOJ play in antitrust rulemaking and enforcement. With this in mind, we took a close look at the Hart-Scott-Rodino Act (HSR) and Second Requests (a regulatory action wherein the FTC or DOJ require parties proposing a merger to provide them with more documents and details about the merger).
In light of Loper Bright, there is uncertainty around the fate of the FTC’s proposed 2023 changes to the HSR Form and Instructions, which—if implemented—would place an increased burden on organizations that are looking to undergo a merger. Because any potential challenges to these changes may be bolstered by Loper Bright, it will be interesting to see if regulators’ posture towards more in-depth HSR pre-merger reviews will maintain or evolve.
To help you get you started and prepare at your own organization, here are a few of our recommendations:
- Cultivate collaborative partnerships with knowledgeable attorneys and providers
- Be proactive with due diligence
- Closely monitor signals and guidance from the Federal Trade Commission and the U.S. Department of Justice when it comes to antitrust enforcement
As organizations navigate and respond to this volatile antitrust environment, it’s also important to have the right partners and expertise to leverage. With experience representing clients before the FTC, the antitrust division of the DOJ, and states attorneys general, attorneys such as Corey bring a unique and valuable perspective when guiding clients through contentious antitrust and consumer protection litigation and investigations, as well as navigating the antitrust regulatory aspects of merger clearance.
Developing a holistic view when using technology to manage antitrust compliance, including merger clearance, competitor disputes, and regulatory compliance is critical too. Through our work with clients, we’ve developed a practice which incorporates attorneys, technologists, linguists, eDiscovery project managers, and document review consultants and staff. By using specialized technology and workflows, we have created an approach designed to fundamentally streamline these complex and intense regulatory situations.
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