Competition Matters


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.

HSR threshold adjustments and reportability for 2018

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.

Vertical mergers, yesterday and today

Last week, I spoke about a topic that has attracted a lot of popular interest in antitrust enforcement lately—vertical merger enforcement. We view vertical mergers as an important part of the FTC’s enforcement agenda. However, it is true that, relative to horizontal mergers, vertical mergers are a smaller part of the workload of the FTC and the DOJ’s Antitrust Division.

Voices for Liberty Videos: “Fireside chat” participants explain burdens of unnecessary occupational licensing

When Acting Chairman Ohlhausen launched the FTC’s Economic Liberty Task Force in early 2017 to shine a spotlight on occupational licensing, the goal was not only to advocate for needed reforms. She also wanted to give a voice to the millions of American workers and consumers – especially military families – whose lives and livelihoods are impacted by misguided policies.

“All” means All: Submit side agreements with an HSR filing

When preparing an HSR filing for a proposed acquisition, some practitioners counsel their clients not to submit binding agreements or side letters negotiated between the merging parties that reflect the parties’ antitrust review obligations, risk-sharing commitments, and potential remedial measures. Some claim that these “side agreements” are ancillary to the main agreement, while others withhold such side agreements believing they are protected by a common interest privilege or as part of a joint defense agreement.

Have an HSR question? Help us answer you quickly

The staff of the Premerger Notification Office processes, reviews, and answers inquiries related to around two thousand transactions, involving roughly 4,000 HSR filings, each year. The number one priority of the PNO is to process incoming HSR filings in a timely fashion so Bureau of Competition and Antitrust Division litigation staff can review filings of interest and we can clear non-problematic transactions for closing as quickly as possible.

DOJ’s Premerger and Division Statistics Unit is moving!

On Monday, November 27, 2017, the Premerger and Division Statistics Unit of the Antitrust Division of the Department of Justice is relocating to the Liberty Square Building at 450 Fifth Street, N.W.

As of November 27, 2017, all mail and overnight deliveries related to HSR filings should be addressed to:

Department of Justice
Antitrust Division
Premerger and Division Statistics Unit
450 Fifth Street, N.W.
Suite 1100
Washington, DC 20530-0001

What do we know about the effects of occupational licensing?

If you’re a competition policy wonk (a title we both wear proudly), we probably don’t need to convince you to stop by or tune in to the FTC’s upcoming November 7 roundtable discussion to explore ongoing research about the effects of occupational licensing on competition, consumers, and the workforce. For the rest of you…please read on, and give us a chance to try.