Competition Matters

The great majority of attorneys appearing before the Commission share a sense of practicing at the height of our profession.  They engage with Commission staff on pressing issues of fact, antitrust law and economic theory in matters of great importance to consumers and our economy.  For a few, however, there may be perceived opportunities to seek an advantage in the debate through misrepresentation of key facts.  For those few, we want to remind practitioners that attorneys appearing in an investigation or administrative proceeding owe a duty of candor and professionalism to the Commission

In written submissions to the Bureau or the Commission, be brief, be direct, and avoid repeating points made in previous papers. Wherever possible, multiple aligned parties should prepare joint submissions.  Submit any written materials well in advance of a meeting—not less than three days beforehand—so the Bureau and the Commission have time to receive input from staff and consider your arguments.

(Note: The first draft of this post was three paragraphs long.)

Commission orders – both from negotiated settlements and from litigated matters – routinely require Respondents to submit periodic reports on their efforts to comply with the order. (See also Commission Rule 2.41(a)).  Ensuring compliance with Commission orders designed to remedy prior violations of antitrust law, and to prevent future recurrence, is a critical part of the FTC’s enforcement mission.

The FTC’s ability to obtain information through subpoenas and civil investigative demands (CIDs) is critical to the task of investigating potential law violations. The FTC uses this authority deliberately and responsibly, avoiding unnecessary burdens on businesses and individuals and consistent with our obligations to enforce the law.

Lawyers who have been paying attention to such things might recall the predicted fallout from the decision in Akzo Chemicals Ltd v. European Commission, Case C-550/07-P (September 14, 2010). In Akzo, the ECJ held that internal communications between in-house counsel and their companies’ employees are not privileged in European competition law cases.

Last month, Judge Tanya S. Chutkan of the United States District Court for the District of Columbia granted the FTC’s Motion for Preliminary Injunction, halting Wilhelmsen’s proposed acquisition of Drew Marine following a 10-day hearing.

The Bureau of Competition has undertaken several initiatives to streamline our merger review process in order to reach swifter resolutions—whether that be clearance, a negotiated settlement, or a lawsuit. As part of these efforts, we are announcing a new Model Timing Agreement for the Bureau’s merger reviews.

An important aspect of the FTC’s Premerger Notification Program is the granting of early terminations. Any person filing an HSR form may request that the waiting period be terminated before the statutory waiting period expires, allowing the parties to consummate their deal.

If your HSR compliance program tracks only those acquisitions that require a payment, you may miss a variety of reportable acquisitions, leading to liability and fines for failures to file. In most situations, you have to file notification under the Hart-Scott-Rodino Act before you pay to purchase voting securities, assets, or certain non-corporate interests. As a result, many HSR compliance programs kick in when someone has to write a check. Below we flag some examples of situations in which you may need to file – a compliance program that won’t catch these isn’t doing its job.