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 19 July 2023, the Department of Justice’s Antitrust Division (DOJ) and the Federal Trade Commission (FTC) jointly released new draft merger guidelines for public comment. The guidelines are intended to explain how the DOJ and FTC will assess whether future mergers and acquisitions may violate US antitrust law. These guidelines represent another step in the Biden Administration’s effort to increase aggressive merger enforcement.

On 27 June 2023, the Federal Trade Commission, with the concurrence of the Assistant Attorney General for the US Department of Justice’s Antitrust Division, announced proposed changes to the premerger notification form and associated instructions and rules that implement the Hart-Scott-Rodino (HSR) Act. The proposed changes represent an expansion and reorganization of the information collected on the HSR form.

The Antitrust Division of the Department of Justice announced that it reached a settlement in its litigation challenge against ASSA ABLOY AB’s proposed USD 4.3 billion acquisition of Spectrum Brand Holding Inc.’s Hardware and Home Improvement division. The settlement, which came in the middle of trial and is now subject to court approval, is the first negotiated settlement under DOJ Assistant Attorney General Jonathan Kanter. Notably, comments from the judge during the trial suggested skepticism towards the DOJ’s position and potential difficulties for the DOJ in winning its case. Without the settlement, this case may have been next in a recent number of DOJ litigation losses.

On 13 April 2023, the Federal Trade Commission (FTC) issued a letter containing a Notice of Penalty Offenses Concerning Substantiation of Product Claims to approximately 670 advertisers, putting each company on notice that deceiving consumers with advertisements that make unsubstantiated product claims could subject the company to civil penalties of up to USD 50,120 per violation under 15 U.S.C. § 45(m)(1)(B).

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.

On 5 January 2023, the Federal Trade Commission voted 3-1 to propose a new rule that would significantly restrict the use of non-compete clauses between employers and employees. The FTC’s proposed rule represents the FTC’s first foray into Section 5 competition rulemaking under Chair Lina Khan. The proposed rule follows a set of enforcement actions taken by the FTC against non-compete covenants in certain employer contracts.

President Joe Biden’s omnibus spending package included three pieces of new antitrust legislation: (1) the Merger Filing Fee Modernization Act; (2) the State Antitrust Enforcement Venue Act; and (3) the Foreign Merger Subsidy Disclosure Act. The Merger Filing Fee Modernization Act will alter filing fees for transactions requiring antitrust review under the Hart-Scott-Rodino Act. The new fee structure will reduce filing fees for smaller transactions, while significantly increasing fees for the largest ones.

On 10 November 2022, following a 3-1 vote, the Federal Trade Commission issued a policy statement expanding its interpretation of the scope of unfair methods of competition under section 5 of the Federal Trade Commission Act. Section 5 of the FTC Act prohibits “unfair methods of competition,” which covers conduct that violates antitrust laws or section 5 itself.

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