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.
Most major companies have implemented a compliance program but often struggle with two issues: ensuring the compliance program remains effective in light of their existing and changing landscape and making it more efficient by leveraging technology. The Compliance Cockpit specifically addresses both issues.
A federal judge granted six individual defendants’ joint motion for judgment of acquittal in a criminal antitrust trial involving allegations that the defendants conspired to allocate the labor market for aerospace industry employees. The ruling was issued mid-trial before the jury was asked to deliberate. This ruling marks another loss for the Department of Justice in a series of no-poach and wage-fixing criminal prosecutions and is significant because the court held that the alleged no-poach agreement did not constitute a per se market allocation violation as a matter of law.
On 4 May 2023, Royal Excelsior Virton, a professional football club in Belgium’s second division, announced that it lodged a complaint against competing club SK Lommel with the European Commission under the new Regulation 2022/2560 on foreign subsidies distorting the internal market (“FSR”). This appears to be the first time the Commission is publicly asked to initiate an ex officio investigation under the FSR.
In a press release dated 3 April 2023, Confindustria Dispositivi Medici (the Italian Association of Medical Device Companies) announced the submission to the European Commission of a complaint to initiate infringement proceedings against Italy for the breach of the EU legislation on the matter of competition, market access and public procurement resulting from the Italian law governing the payback for medical devices.
The UK Government published on 25 April 2023 its long-awaited Digital Markets, Competition and Consumers Bill. The Bill introduces radical new digital sector regulation – akin to the EU’s Digital Markets Act – in addition to expanding the UK Competition & Markets Authority’s consumer protection powers and introducing significant reforms for the UK competition regime.
Under the FTC’s order, JAB must obtain the Commission’s prior notice provision and also a broad prior approval provision. That is a risk if the PE firms have a roll-up strategy, because it then requires future notification on acquisitions in the same space. This puts the firms at a disadvantage in a competitive auction setting.
There is growing attention on private equity from antitrust regulators. In 2022, the US Federal Trade Commission placed a condition on JAB Consumer Partners’ acquisition and required prior approval and notice regarding future acquisitions in the same space. Sponsors are encouraged to be more active with legislative and regulatory engagement and behave more like large corporates.
On 5 April 2023, the German Federal Ministry of Economics and Climate Protection published the government draft of the 11th amendment to the Act against Restraints of Competition. Vice Chancellor Robert Habeck described the amendment as “one of the biggest reforms of competition law in recent decades”, which – in the words of Federal Minister of Justice Dr. Marco Buschmann – is intended to give the German Federal Cartel Office more “teeth”
The Indonesian Competition Commission (Komisi Pengawas Persaingan Usaha (KPPU)) issued KPPU Regulation No. 3 of 2023 on Merger Filing Procedures, which replaced KPPU Regulation No. 3 of 2019 on the same matter. The New Merger Control Regulation became effective as of 31 March 2023, and it regulates administrative, procedural and substantive aspects of merger control. All filings from April 2023 onwards will be subject to the New Merger Control Regulation, including for transactions that had closed before 31 March 2023 but had not been filed. In addition, a new Governmental Regulation No. 20 of 2023 on Non-Tax Revenue Applicable to KPPU was also issued on 5 April 2023 and effective as of 5 May 2023 regulating that merger filings will be subject to a filing fee.