Tag Archives: Nelson O. Fitts

Antitrust Insights from the Administration’s First Six Months

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

Left to right: Ilene Knable Gotts, Nelson O. Fitts, Damian G. Didden, Christina C. Ma, and Emily E. Samra (photos courtesy of Wachtell, Lipton, Rosen & Katz)

As predicted, antitrust merger enforcement under the second Trump Administration exhibits a return to a more restrained approach at both the Federal Trade Commission and the Antitrust Division of the Department of Justice.  Most refreshingly, the agencies appear committed to good faith engagement with merging parties.  The FTC lifted its four-year “temporary” suspension of early terminations of the HSR waiting period, and a senior Division official recently stated that the DOJ will “not send ‘scarlet’ letters warning parties that they ‘close at their own risk’”—a practice adopted under the prior administration.  In recent orders, the FTC highlighted the importance of Commission staff and merging parties working together in “good faith” during merger reviews.  In public statements, both the FTC and DOJ have eschewed “turning the HSR review into an extortion racket.” These commitments reflect a welcome return to established patterns of antitrust practice, where proactive engagement with regulators can lead to efficient outcomes for lawful transactions.  

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Divided FTC Decrees Sweeping Ban of Employment Non-Competes

by Nelson O. Fitts, Michael J. Schobel, and Emily E. Samra

Photos of the authors

Left to right: Nelson O. Fitts, Michael J. Schobel, and Emily E. Samra (photos courtesy of Wachtell, Lipton, Rosen & Katz)

In a recent public meeting, a divided Federal Trade Commission voted along party lines to issue a final rule prohibiting non-compete clauses for nearly all U.S. workers. The FTC previously published the proposed ban in January 2023, drawing thousands of public comments. The final rule hews closely to the initial proposal, but with slightly broader exceptions.

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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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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 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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