Antitrust

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On October 4, 2023, the Department of Justice (DOJ) announced the advent of a new safe harbor for companies that discover wrongdoing by the acquired business in the course of an M&A transaction. Buyers hoping to take advantage of this avenue for leniency would be well-advised to conduct thorough diligence and act quickly to report any wrongdoing they uncover, as the potential upsides for those who do so may be considerable in light of the DOJ’s new policy.Continue Reading DOJ Announces Mergers & Acquisitions Safe Harbor Policy

On June 27, 2023, the FTC and DOJ (together the “Agencies”) announced a notice of proposed rulemaking (“NPRM”) proposing extensive revisions to both the rules that implement the Hart-Scott-Rodino Antitrust Improvements Act (the “Act” or “HSR Act”) and the Premerger Notification and Report Form (the “Form”) that merging parties must submit under the Act. Our previous analysis of the NPRM is covered here.Continue Reading Mergers & Acquisitions Update: A Closer Look at the Impact of the FTC and DOJ’s Proposed HSR Act Filing Reform on Private Equity Firms

On September 21, 2023, the Federal Trade Commission (FTC) sued Welsh, Carson, Anderson & Stowe (WCAS) and U.S. Anesthesia Partners, Inc. (USAP), in the Southern District of Texas, alleging the two companies “[e]xecuted a multi-year anticompetitive scheme to consolidate anesthesiology practices in Texas, drive up the price of anesthesia services provided to Texas patients, and boost their own profits.”Continue Reading FTC Sues Private Equity Firm and Anesthesiology Practice for Antitrust Violations

On July 19, 2023, the Federal Trade Commission (“FTC”) and United States Department of Justice (“DOJ”) jointly published long-anticipated proposed merger guidelines (the “Proposed Merger Guidelines”), which had been expected since President Biden issued an Executive Order Promoting Competition in the American Economy in the summer of 2021. According to the agencies, the Proposed Merger Guidelines “build upon, expand, and clarify” the prior guidance,[1] to keep up with “modern” market realities.[2] In contrast to the previous versions, the Proposed Merger Guidelines cover both horizontal and vertical mergers. They also cite case law for the first time.[3] Reflecting the Biden Administration’s views on federal antitrust merger enforcement, the Proposed Merger Guidelines substantially expand the types of competitive harm the agencies consider grounds for challenging a transaction under Section 7 of the Clayton Act (which prohibits mergers where the effect is “substantially to lessen competition” or “to tend to create a monopoly”).[4]Continue Reading A Big Deal: FTC and DOJ Issue Long-Awaited New Draft Merger Guidelines

In a blog earlier this year, we discussed the Delaware Chancery Court’s refusal to enforce a sale of business non-compete in Kodiak Building Partners, LLC v Adams. We wondered then whether Kodiak represented a one-off decision or whether it augured a trend that might give buyers of businesses pause. Delaware courts seem to have answered the question. In what constitutes a notable trend for buyers of businesses, Delaware courts have twice more refused to enforce non-competes under a sale of a business analysis. Continue Reading Buyer Beware: Delaware Courts Continue to Refuse to Enforce Deal-Based Non-Competes

The FTC announced today a notice of proposed rulemaking (“NPRM”)[1] proposing extensive revisions to both the rules that implement the Hart-Scott-Rodino Antitrust Improvements Act (the “Act” or “HSR Act”), and the Premerger Notification and Report Form (the “Form”) that merging parties must submit under the Act. The NPRM would also implement the Merger Filing Fee Modernization Act of 2022. Continue Reading Notice of Proposed Rulemaking: FTC Proposes to Redesign and Dramatically Expand the Scope of the HSR Act Filing Process

Antitrust enforcement has been heating up over the last few years in several areas – notably in healthcare and labor.[1] As the antitrust climate intensifies and spreads, private equity (PE) firms are starting to feel the heat, finding themselves the focus of increased antitrust scrutiny. Significantly, antitrust enforcement and litigation risks are moving from the portfolio companies to the PE firms themselves. Three areas of heightened risk stand out: interlocking directorates, roll-ups, and PE divestiture buyers.[2]Continue Reading Hot Antitrust Enforcement Climate Reaches Private Equity

1. Higher Jurisdictional Thresholds For HSR Filings

On January 23, 2023, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The jurisdictional thresholds are revised annually based on the change in Gross National Product (GNP).Continue Reading Higher Jurisdictional and Filing Fees Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced

On Dec. 29, 2022, President Biden signed into law H.R. 2617, the “Consolidated Appropriations Act, 2023.” Included within H.R. 2617 is The Merger Filing Fee Modernization Act of 2022, which impacts HSR filings as set forth below:Continue Reading New Law Substantially Increases HSR Filing Fees for Large Transactions

Since President Biden’s July 2021 direction to the Federal Trade Commission (“FTC”) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” the FTC has ratcheted up its scrutiny of and investigations into non-compete agreements and other restrictive covenants. Now, the FTC has expanded beyond post-employment restrictive covenants to tackle “sale of business” non-competes. Most recently, the FTC voted in favor of a deal-changing proposed order against ARKO Corp. related to its 2021 acquisition of sixty fuel outlets from Corrigan Oil Company.Continue Reading Buyer (and Seller) Beware: The FTC Is Coming for Your M&A Non-Competes