Category Archives: Antitrust and Anti-Competitive Behavior

U.S. M&A Antitrust Enforcement: 2023 and the Year Ahead

by Ilene Knable Gotts, Nelson O. Fitts, Damian G. Didden, Christina C. Ma, and Monica L. Smith.

Photos of Authors

From left to right: Ilene Knable Gotts, Nelson O. Fitts, Damian G. Didden, Christina C. Ma, and Monica L. Smith (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

In 2023, leadership of the Federal Trade Commission and the Antitrust Division of the Department of Justice maintained an aggressive approach to merger enforcement, investigating and challenging transactions on the basis of a broad range of theories of harm articulated in the agencies’ newly issued 2023 Merger Guidelines. Although some transaction parties abandoned their deals at the prospect of a lengthy investigation or litigation, others defended their transactions in court, where the agencies met with mixed success. The FTC and DOJ also continued to disfavor merger settlements, entering into only three such consent decrees in 2023. 

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The Data Act – the EU’s Bid to “Ensure Fairness in the Digital Environment and a Competitive Data Market” – Has Been Adopted

by Hope Anderson, Clara Hainsdorf, Tim Hickman, Dr. Sylvia Lorenz, and Jenna Rennie

Left to right: Hope Anderson, Clara Hainsdorf, Tim Hickman, Dr. Sylvia Lorenz, and Jenna Rennie (Photos courtesy of White & Case LLP)

On November 27, 2023, the European Union (“EU”) adopted the final text of the Data Act, marking an effort to create a harmonized, cross-sectoral data sharing framework with the stated goal of ensuring fair access to and use of data.

The Data Act is part of the European Data Strategy Package,[1] which aims for the EU to take a leading role in our networked world. Following the Data Governance Act,[2] which facilitates voluntary data sharing by businesses, individuals and the public sector, the Data Act is the second key piece of legislation aiming to make generated data more available for reuse. To that end, the Data Act seeks to maximize the value of data and to stimulate a competitive data market in which open opportunities for data-driven innovations make data more accessible for all.

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DOJ Ends No-Poach Prosecution of SCA

by David B. Anders, Carrie M. Reilly, Kevin S. Schwartz, and Yolanda Bustillo

Photos of the authors.

From left to right: David B. Anders, Carrie M. Reilly, Kevin S. Schwartz, and Yolanda Bustillo. Photos courtesy of Wachtell, Lipton, Rosen & Katz.

Today, almost three years after the Antitrust Division brought criminal charges against Surgical Care Affiliates (“SCA”), the District Court for the Northern District of Texas granted the government’s motion to dismiss the indictment, with prejudice, marking the latest setback in the agency’s aggressive enforcement of labor market cases.  Earlier this year, we noted that the Antitrust Division’s prosecution of criminal wage‑fixing and no-poach agreements warranted reconsideration given the many problems these cases present.  The Antitrust Division’s decision to dismiss its case against SCA signals that the agency may have done just that.

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Biden Administration Issues Sweeping Executive Order Directing Federal Agencies to Examine and Address Risks of Artificial Intelligence

by William Savitt, Mark F. Veblen, Kevin S. Schwartz, Noah B. Yavitz, and Courtney D. Hauck

Photos of the authors

From left to right: William Savitt, Mark F. Veblen, Kevin S. Schwartz, Noah B. Yavitz, and Courtney D. Hauck (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

On Monday, the Biden Administration issued a long-awaited executive order on artificial intelligence, directing agencies across the federal government to take steps to respond to the rapid expansion in AI technology. The order attempts to fill a gap in national leadership on AI issues, with Congress showing little progress on any comprehensive legislation. The order mandates regulatory action that could affect companies throughout the domestic economy, including: Continue reading →

French Competition Regulator Fines Six Companies €31.2 Million for Bid-Rigging

by Jonathan J. Rusch 

Photo courtesy of the author

Photo courtesy of the author

Despite its clearcut illegality in numerous countries around the world[1], and its inherently corrupt nature[2], bid rigging remains a perennial temptation for some companies that prefer predictability to the rigors of competition.  A recent decision by the French Autorité de la concurrence (French Competition Authority/FCA) shows the extent to which some companies will go in establishing and maintaining bid-rigging schemes.

On September 7, the FCA issued a decision that fined six companies in the engineering, maintenance, decommissioning, and nuclear waste treatment services sector – OTND, Nuvia Process (a subsidiary of the Vinci Group), Endel, Bouygues Construction Expertises Nucléaires (BCEN), SNEF, and SPIE — a total of €31.2 million for engaging in anticompetitive agreements during calls for tender for decommissioning of a nuclear power plant.[3]  This post will address the actions of the fined companies, summarize the FCA’s decision, and offer some observations about its significance.

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FTC Alleges “Serial Acquirer” Theory in Challenge to Consummated PE Deals

by Andrew J. Nussbaum, Jonathan M. Moses, Nelson O. Fitts, Adam L. Goodman, and Itai Y. Thaler

Photos of the authors

From left to right: Andrew J. Nussbaum, Jonathan M. Moses,  Nelson O. Fitts, Adam L. Goodman, and Itai Y. Thaler. (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

Last week, the Federal Trade Commission sued U.S. Anesthesia Partners, Inc. (“USAP”) and its private equity investor, Welsh, Carson, Anderson & Stowe, as well as a number of Welsh Carson entities, in federal district court, alleging that USAP and Welsh Carson conspired to monopolize and reduce competition for anesthesia services in Texas.  The FTC’s complaint alleges that, beginning in 2012, Welsh Carson, through its investment in USAP — which varied between 23% and 50.2% over the relevant period — directed a “roll-up scheme” to acquire and consolidate over a dozen Texas anesthesia practices; caused price increases across the state; and coordinated prices and allocated markets with some of the remaining independent anesthesia providers.  The complaint claims violations of the Sherman Act, the Clayton Act, and the FTC Act, and seeks unspecified “structural relief” that could include restitution and divestitures.

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FTC and DOJ Propose Fundamental Revision of Merger Guidelines

by Ilene Knable Gotts, Christina C. Ma, and Katharine R. Haigh

Photos of the authors

Left to right: Ilene Knable Gotts, Christina C. Ma, and Katharine R. Haigh (photos courtesy of Wachtell, Lipton, Rosen & Katz)

Recently, the Federal Trade Commission and Antitrust Division of the Department of Justice published a proposed replacement to the existing Horizontal Merger Guidelines and Vertical Merger Guidelines. The agencies’ draft guidelines (the “Guidelines”) do not have any independent legal effect, but are intended to influence the federal courts and to provide guidance as to how the federal antitrust authorities will analyze the competitive impact of transactions and decide whether to challenge them. 

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FTC Proposes Sweeping Changes to HSR Reporting Obligations

by Ilene Knable Gotts, Nelson O. Fitts, Damian G. Didden, and Christina C. Ma

Photos of the authors

Left to Right: Ilene Knable Gotts, Nelson O. Fitts, Damian G. Didden, and Christina C. Ma (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

In a notice of proposed rulemaking published recently, the Federal Trade Commission unveiled significant changes to the reporting obligations under the Hart-Scott-Rodino Act.  If adopted as final rules, those changes will materially increase filing burdens and hinder parties’ ability to file and close quickly, even in non-problematic transactions.  The changes would upend 45 years of HSR Act practice and impose significant cost and delay on reportable U.S. merger and acquisition activity. 

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FTC Diminishes Role of Administrative Law Judge

by Jonathan M. Moses, Nelson O. Fitts, and Adam L. Goodman

Photos of the authors

From left to right: Jonathan M. Moses, Nelson O. Fitts, and Adam L. Goodman (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

Recently, the FTC quietly issued a final rule modifying its internal procedures to diminish the role of its Administrative Law Judge.  The ALJ adjudicates, among other things, the agency’s challenges to mergers and acquisitions under the antitrust laws.  The move is of a piece with the agency’s agenda under Chair Lina Khan—on which we have commented here, here, and here—and underscores the significance of numerous pending challenges to the constitutionality of the FTC’s in-house adjudicative process. 

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Court Ends Antitrust No-Poach Trial in U.S. v. Patel with Judgment of Acquittal

by Brian Byrne, Heather S. Nyong’o, Jeremy Calsyn, Larry Malm, and Joseph M. Kay

Photos of the authors

From left to right: Brian Byrne, Heather S. Nyong’o, Jeremy Calsyn, Larry Malm, and Joseph M. Kay (photos courtesy of Cleary Gottlieb Steen & Hamilton LLP)

On April 28, 2023, U.S. District Court Judge Victor A. Bolden entered an Order under Criminal Procedure Rule 29 acquitting the defendants in United States v. Patel, a federal criminal prosecution claiming that individuals employed by an aerospace company and its suppliers of outsourced labor entered into a per se illegal conspiracy under Section 1 of the Sherman Act to restrict hiring. Continue reading →