The US Federal Trade Commission (FTC) and the US Department of Justice Antitrust Division (DOJ) (together “Agencies”) each have recently taken enforcement actions that demonstrate renewed attention on interlocking directorates (in which individuals simultaneously serve as directors on the boards of competing companies). Interlocking directorates are prohibited under Section 8 of the Clayton Act unless one of its de minimis exceptions applies. Those exceptions are dependent upon the volume of revenues derived from products sold by the operative companies in competition with one another.

On Friday 16 June 2023, the Federal Trade Commission’s Bureau of Competition issued a strong warning to companies regarding the inclusion of certain types of contract terms that can “impede investigations” and “are contrary to public policy and unenforceable.” Specifically, the announcement warned against confidentiality clauses, nondisclosure agreements, and “notice of agency contact” provisions, commonly used in business-to-business and employment contracts.

On 3 February 2023, the US Department of Justice announced the withdrawal of three antitrust policy statements that allowed certain information exchanges between competitors in healthcare markets. The day before this announcement, Principal Deputy Assistant Attorney General Doha Mekki of DOJ Antitrust Division warned that DOJ would reconsider these outdated policy statements in light of recent changes in the healthcare industry.

The Federal Trade Commission has just announced its annual adjustment to the notification thresholds that determine whether proposed transactions may trigger a filing obligation under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, which will apply to transactions that close on or after 27 February 2023.

Over the past few months, the Federal Trade Commission has engaged in a comprehensive review of how the agency should evaluate antitrust issues affecting the pharmaceutical distribution stack.

On 18 January 2022, the Department of Justice and Federal Trade Commission 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 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.

Antitrust enforcement officials in the US and EU are watching developments surrounding the use of pricing algorithms and artificial intelligence. One area in particular that has drawn attention is the emerging use for AI to combine data and analytics to more accurately price products. Of course, competitive intelligence gathering is…