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In brief

On 18 January 2022, the Department of Justice (DOJ) and Federal Trade Commission (FTC) announced a joint public inquiry seeking comments on ways to “modernize” the federal merger guidelines and “strengthen merger enforcement.” The press release calls for public comments on a range of topics and highlights the agencies’ joint view that many industries across the economy are becoming more concentrated and “less competitive.”

In their statements, both DOJ Assistant Attorney General (AAG) for the Antitrust Division, Jonathan Kanter, and FTC Chair, Lina M. Khan, announced an intention to “overhaul” the 2010 Horizontal Merger Guidelines and conduct a broad-based review of the 2020 Vertical Merger Guidelines.1 Emphasizing the need for public participation and engagement, they hope to finalize the review by the end of this year.   


Contents

  1. Background 
  2. Key Takeaways: Comments by FTC Chair Khan
  3. Key Takeaways: Comments by DOJ AAG Kanter
  4. Request for Public Input 
  5. Next Steps

Background 

Following the 9 July 2021 Biden Executive Order, which is intended to promote vigorous antitrust enforcement priorities in key markets, the FTC and the DOJ issued a Joint Statement declaring that they would review the existing merger guidelines to determine whether they are “overly permissive.” The FTC also implemented several measures, including rulemaking changes and broad authorizations, to spur more enforcement against “illegal mergers.” In announcing those changes, the FTC cited the “surge in merger filings” and the need to ensure merger reviews are more “comprehensive and analytically rigorous,” which we previously reported on here.

The FTC also voted to withdraw the vertical merger guidelines in September 2021. While the DOJ has not yet withdrawn those guidelines, DOJ AAG Jonathan Kanter noted in his statement on 18 January 2022, accompanying the FTC announcement regarding the joint review of the merger guidelines, “too much has been made of the purported divergence between the DOJ and FTC” and indicated that the DOJ “shares the FTC’s substantive concerns regarding vertical merger guidelines.” 

Key Takeaways: Comments by FTC Chair Khan

Chair Khan raised three “critical” questions to be addressed:

  1. Do the current guidelines adequately account for the range of business strategies and incentives that drive mergers & acquisitions such as “moat-building or data-aggregation strategies by digital platforms, or roll-up plays by private equity firms”? 
  2. Do the guidelines adequately assess how mergers affect labor markets and workers, including consideration of factors beyond wages, salaries, and financial compensation or in assuming layoffs could be viewed as cognizable “efficiencies”?
  3. Are the guidelines “unduly limited” with respect to the kinds of evidence considered, and should the Agencies distinguish what types of evidence may be considered depending on the industry or in evaluating “non-price” effects?

Key Takeaways: Comments by DOJ AAG Kanter

AAG Kanter also outlined several “areas of interest,” offering the following observations and issues for consideration:

  • Whether the current approach focuses on mergers that “substantially lessen competition” to the detriment of analyzing mergers that may “tend to create a monopoly.”
  • Whether the current approach of bifurcating effects into “vertical” and “horizontal” categories is appropriate or whether a more “multidimensional” approach should be considered to account for “market realities” as “often transactions don’t neatly fit into” horizontal and vertical categories.
  • Whether, the existing guidelines “overstate the potential efficiencies of vertical mergers and fail to identify important relevant theories of harm.”
  • Whether, “market realities” should do more to drive analysis given that “the static formalism of market definition may not always be the most reliable tool.”
  • Whether there are other tools that could be relied on instead of market definition, such as head-to-head competition and other indicia of market power, to analyze mergers.
  • Whether Agencies should “more thoughtfully consider competition within a market or for a market” accounting for the fact that “stacks or clusters of component products and services often come together to drive both digital and physical supply chains.”  

Request for Public Input 

Both Chair Khan and AAG Kanter encouraged comments and specifically asked for input on the following areas of inquiry:

  • Should merger thresholds be modified to improve enforcement, and might certain metrics or qualitative factors trigger presumptions of competitive harm, and what evidence should be used to address the accuracy of such presumptions?
  • What are reliable metrics to account for non-price competition, and when might direct evidence of a transaction’s likely competitive effects eliminate the need for a separate market definition analysis?
  • What amendments to the guidelines are required to account for the potential future significance of nascent competitors
  • How can the guidelines better address the issue of buyer power, and what amendments are appropriate to account for the impact of mergers on labor markets?

Next Steps

Notably, in a subsequent address on 24 January 2022, to the New York State Bar Association’s Antitrust Section, AAG Kanter announced that the DOJ would pivot to pursuing injunctions as the presumptive remedy for anticompetitive transactions, instead of negotiated consent decrees. Kanter also noted his skepticism toward partial divestures in merger settlements, and declared that going forward the agency will pursue structural remedies rather than behavioral remedies in conduct cases where possible.

We will continue to monitor relevant statements, actions, and initiatives, and will provide pertinent updates.

In the interim, we are available to respond to any specific questions you have about how these developments may affect your business and M&A strategy.


1 While the FTC has rescinded the 2020 Vertical Merger Guidelines, the DOJ has not yet followed suit.

Author

Mark H. Hamer is Global Chair of the Firm's Antitrust & Competition Practice Group, comprised of over 300 competition lawyers in over 60 offices across 43 countries. Mark has over 25 years of wide-ranging litigation experience, including first-chair roles in jury trials, bench trials and arbitrations. His primary focus is antitrust litigation. Before joining Baker McKenzie, Mark was a successful trial attorney in the Antitrust Division of the US Department of Justice. He was involved in some of the DOJ's highest-profile antitrust trials. Before joining the DOJ, Mark was a partner at another global law firm where he handled complex multidistrict antitrust class actions in courts across the nation.

Author

Creighton Macy is the Chair of Baker McKenzie's North America Antitrust & Competition Practice Group. Creighton is recognized as a leading global antitrust practitioner. Creighton has extensive experience representing clients in a wide variety of antitrust matters, including mergers and acquisitions, investigations by the United States Department of Justice and the Federal Trade Commission, private litigation, and counselling on issues such as antitrust compliance. Before joining the Firm, Creighton served as Chief of Staff and Senior Counsel in the DOJ Antitrust Division, working as a senior advisor to the Assistant Attorney General on civil and criminal antitrust enforcement and policy matters, as well as budget and personnel issues. During Creighton's time at the DOJ, the Antitrust Division undertook an unprecedented volume of high-profile civil and criminal matters. Creighton began his career as a Trial Attorney in the Litigation III and Transportation, Energy, and Agriculture sections of the Antitrust Division, working on a number of notable merger and civil non-merger investigations and cases. Before rejoining the Antitrust Division as its Chief of Staff, he was a member of another global law firm's antitrust practice, where he advised clients on a wide range of US and international antitrust issues. Creighton is consistently recognized globally for his market-leading antitrust practice with respect to high-stakes transactions, investigations, and compliance and counseling work. For example, clients have noted that Creighton “shines above the rest’ due to his first-rate cartel and merger control-related practice.’” He also regularly speaks and publishes articles relating to a variety of antitrust issues, and has been recognized many times for his contributions and thought-leadership on these issues. Creighton is currently Co-Chair of the American Bar Association Antitrust Law Section’s Young Lawyers Task Force. In previous roles, he served as Reporter of the Presidential Transition Task Force, as well as Chair of the Trade, Sports, and Professional Associations Committee. He is highly involved in mentoring programs, including with the Antitrust Law Section, as well as Marquette University Law School, where he previously served as the DC Representative of the Alumni Board. Creighton graduated from Marquette University, where he was an NCAA Division I Academic All-American tennis player. During his time at Marquette, he was awarded the Athletic Department’s Cura Personalis award by his peers, as well as several leadership awards. More recently, Creighton was named the Athletic Department’s Young Alumnus of the Year Award.

Author

Brian Burke is a partner in Baker McKenzie’s Antitrust Practice Group. He concentrates on federal antitrust and trade regulation issues. He assists clients successfully navigate the merger clearance process before the US as well as international antitrust authorities. Additionally, Brian has extensive experience representing clients outside of the merger context in civil and criminal governmental antitrust investigations as well as in commercial antitrust litigation. He also regularly counsels clients on the establishment and review of antitrust compliance programs and risk assessments as well as pricing/distribution policies. Brian is a member of the Steering Committee for the Firm’s North America Antitrust Practice Group, and is the Firm’s North America representative on its global merger-control taskforce.

Author

John Fedele is a member of Baker McKenzie's antitrust practice and is located in its Washington, DC office. While he has a broad range of antitrust experience, he most frequently represents clients before the Antitrust Division of the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) in investigations of proposed mergers and acquisitions, and routinely analyzes and manages filing obligations under the Hart-Scott-Rodino (HSR) Act and foreign competition regimes.

Author

Teisha Johnson is a member of Baker McKenzie's antitrust practice in Washington, DC. She advises clients on a wide range of antitrust and e-discovery matters, and has considerable experience counseling clients in government investigations, proposed mergers and acquisitions, compliance, and litigation matters.

Author

Dan is an associate in Baker McKenzie's Global Antitrust & Competition Practice Group in Washington, DC. He advises clients on all aspects of antitrust law before the Department of Justice, Federal Trade Commission, US courts, and foreign competition authorities. Prior to joining the Firm, Dan was an associate in the antitrust group of another large international law firm. Dan is an active member of the ABA Section of Antitrust Law and currently serving as the Vice Chair for the Distribution and Franchising Committee. Dan also maintains an active pro bono practice with his recent focus being on antitrust issues related to occupational licensing.

Author

Arvind S. Miriyala is an associate in Baker McKenzie's North America Antitrust & Competition Practice Group in Washington, DC. He advises clients on all aspects of antitrust law before the Department of Justice, Federal Trade Commission, US courts, and foreign competition authorities. He also maintains an active pro bono practice with a recent focus on antitrust issues related to occupational licensing. Prior to joining Baker McKenzie, Arvind was a Litigation Associate working on antitrust matters at another large international law firm. During law school, Arvind served as a judicial intern in the US District Court for the District of Columbia where he worked for the Honorable Reggie B. Walton as well as the US District Court for the District of Maryland where he worked for the Honorable Deborah K. Chasanow.

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