Competition Matters

More and more, merging parties argue that their merger does not raise competition concerns because they are not each other’s closest competitors. Parties have advanced this argument even in markets where there will be only two or three remaining firms post-transaction, including the merged firm. This argument is not new, and it often misunderstands merger analysis.

Parties regularly present their arguments and defenses of conduct and mergers to the Front Office of the Bureau if staff has recommended a challenge. A surprising number of these presentations begin with a recap of “how we got here” that includes various complaints about the investigating staff. Common complaints have included: the investigation is taking too long; staff didn’t present their concerns early enough in the investigation; and market definitions or areas of concern have evolved during the investigation. To be blunt, complaining about the staff is not a good defense.

The Bureau of Competition is pleased to announce the conversion of the Technology Task Force into a permanent division in the Bureau of Competition. Effective October 1, 2019, it has become the Technology Enforcement Division.

The FTC’s Bureau of Economics is updating its guidance regarding the best practices for submitting data and economic analysis related to antitrust investigations. BE routinely engages in econometric analysis of data obtained from the parties, third parties, and independent data vendors. Similarly, consultants retained by the parties often submit their own quantitative analyses.

The Front Office of the FTC’s Bureau of Competition receives a great deal of advocacy from the bar. Virtually every day, parties and their counsel make arguments and present evidence to us regarding the various merger and conduct matters handled by the Bureau’s various Divisions.

Crafting effective merger remedies is one of the Commission’s most important tasks. Done well, a divestiture prevents the competitive harm likely to result from a proposed merger and ensures that competition remains as robust as it was premerger.

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.