Competition Matters

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Unpacking Divestiture Packages

Crafting effective merger remedies is one of the Commission’s most important tasks. Done well, a divestiture prevents the competitive harm likely to result from a proposed merger and ensures that competition remains as robust as it was premerger.

Joining the issues on the high road

The great majority of attorneys appearing before the Commission share a sense of practicing at the height of our profession.  They engage with Commission staff on pressing issues of fact, antitrust law and economic theory in matters of great importance to consumers and our economy.  For a few, however, there may be perceived opportunities to seek an advantage in the debate through misrepresentation of key facts.  For those few, we want to remind practitioners that attorneys appearing in an investigation or administrative proceeding owe a duty of candor and professionalism to the Commission

FTC becomes a founding member of ICN Framework to promote procedural fairness in competition enforcement

On May 1, the Federal Trade Commission registered for the International Competition Network’s Framework for Competition Agency Procedures (CAP), making it a founding member of the ICN’s most recent initiative to promote fair and informed competition enforcement procedures around the world.

In submissions, brevity’s better

In written submissions to the Bureau or the Commission, be brief, be direct, and avoid repeating points made in previous papers. Wherever possible, multiple aligned parties should prepare joint submissions.  Submit any written materials well in advance of a meeting—not less than three days beforehand—so the Bureau and the Commission have time to receive input from staff and consider your arguments.

(Note: The first draft of this post was three paragraphs long.)

Compliance reports: Reinforcing a commitment to effective orders

Commission orders – both from negotiated settlements and from litigated matters – routinely require Respondents to submit periodic reports on their efforts to comply with the order. (See also Commission Rule 2.41(a)).  Ensuring compliance with Commission orders designed to remedy prior violations of antitrust law, and to prevent future recurrence, is a critical part of the FTC’s enforcement mission.

HSR threshold adjustments and reportability for 2019

When Congress passed the Hart-Scott-Rodino Antitrust Improvements Act of 1976, it created minimum dollar thresholds to limit the burden of premerger reporting. In 2000, it amended the HSR statute to require the annual adjustment of these thresholds based on the change in gross national product. As a result, reportability under the Act changes from year to year as the statutory thresholds adjust. The PNO fields many questions about the upcoming adjustments to the HSR thresholds from parties whose transactions may take place around the time of the revisions.

The FTC takes its subpoenas and CIDs seriously – and you should, too

The FTC’s ability to obtain information through subpoenas and civil investigative demands (CIDs) is critical to the task of investigating potential law violations. The FTC uses this authority deliberately and responsibly, avoiding unnecessary burdens on businesses and individuals and consistent with our obligations to enforce the law.

Control no longer controlling for HSR reporting of not-for-profit combinations

The PNO routinely provides informal guidance on Hart-Scott-Rodino reporting obligations that arise when combining not-for-profit entities, typically in the context of hospital combinations. In the past, much of this guidance focused on whether the combination resulted in a change of "control" of the board of directors of one or more of the combining entities. This was because those seeking guidance described hospital combinations primarily in terms of formal board governance.

U.S. Privilege Following Akzo Nobel v. European Commission

Lawyers who have been paying attention to such things might recall the predicted fallout from the decision in Akzo Chemicals Ltd v. European Commission, Case C-550/07-P (September 14, 2010). In Akzo, the ECJ held that internal communications between in-house counsel and their companies’ employees are not privileged in European competition law cases.

It takes less time to do a thing right

Longfellow said “It takes less time to do a thing right than to explain why you did it wrong.” We agree, especially when it comes to designing effective merger remedies—ones that maintain competition at pre-merger levels so that the merger does not lead to higher prices, lower quality, or reduced innovation. From the perspective of the Bureau of Competition and the Commission, getting it right takes time.

Oorah, Hooah, and Hooyah: the Florida Bar eases licensing for military spouses

July is Military Consumer Month, so it’s the perfect time to consider the unique challenges of America’s military members and their families. Among the many sacrifices made by military families are frequent relocations, typically every 2 or 3 years. Moving to a new duty station often means that the member’s spouse must find a new job in a new state. For spouses who need a state-issued license to work, each move can involve paperwork, fees, and delays in order to obtain a new license.

You don’t have to write a check to acquire an HSR-reportable interest

If your HSR compliance program tracks only those acquisitions that require a payment, you may miss a variety of reportable acquisitions, leading to liability and fines for failures to file. In most situations, you have to file notification under the Hart-Scott-Rodino Act before you pay to purchase voting securities, assets, or certain non-corporate interests. As a result, many HSR compliance programs kick in when someone has to write a check. Below we flag some examples of situations in which you may need to file – a compliance program that won’t catch these isn’t doing its job.

Avoiding antitrust pitfalls during pre-merger negotiations and due diligence

Most antitrust practitioners are attuned to advising clients about the antitrust risk that a proposed acquisition may violate Section 7 of the Clayton Act. But counsel and clients must also be conscious of the risks of sharing information with a competitor before and during merger negotiations—a concern that remains until the merger closes.

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