Competition Matters

Sometime in the future, when we look back on the year that was 2020, it is likely that we will want to remember the good things that happened. And in the world of FTC antitrust enforcement, a lot of good things happened last year. In fact, any attempt to compile a list of the top 10 couldn’t do justice to the incredible work of Bureau of Competition staff and their unprecedented set of accomplishments in this 12-month span, which I’ve highlighted before.

Next Monday and Tuesday, November 9 and 10, we will be hosting a virtual Question and Answer session to discuss the Commission’s Hart-Scott-Rodino Rulemaking initiative.  On Monday from 1 to 2 pm, we will be discussing the proposed changes in the Notice of Proposed Rulemaking (NPRM) that would, if adopted, require filers to disclose addi

Executives and employees of modern businesses communicate with one another, and with suppliers and customers, in a wide variety of ways. Especially with the current challenges of in-person meetings, electronic exchanges are now the norm for doing business. Emails, memoranda, voicemails, SMS/text messages, instant messages, hard copy notes and collaborative documents are all routinely created and circulated in the ordinary course.  

I am pleased to announce several leadership changes in the Bureau's Mergers I and Mergers IV Divisions.

Under the Hart-Scott-Rodino (HSR) Act and Rules, parties cannot use a transaction structure for the purpose of avoiding or delaying their premerger filing obligation.  If they do, the Commission must ignore the structure and review the substance of the transaction as a whole to determine whether an HSR filing is required. Premerger Notification Office (PNO) staff have recently rethought some prior advice, and today PNO is withdrawing a 2003 informal interpretation relating to special dividends.

It is generally a serious violation of our rules for counsel to pass private notes to a witness in an investigational hearing or deposition, or otherwise coach or consult with a witness, while a question is pending. 16 CFR 2.9(b)(1). Happily, violations of this rule are very rare. But, with the recent shift to remote depositions and hearings, we want to remind the bar that neither this rule nor our vigilance in enforcing it have been relaxed.

The FTC's Bureau of Competition sometimes reviews proposed mergers against the backdrop of civil and criminal antitrust investigations or litigations leveled in the same industry. And at times, such investigations and litigations are leveled against the merger parties themselves. Those ongoing matters may affect our analysis of a merger, as well as the vetting of divestiture packages and proposed divestiture buyers. Even if details of such investigations are not public, Bureau staff are likely to discover their existence during our own investigation of a merger.

As we head into the second half of 2020, it’s a good time to pause and take stock of the past six months of work in the Bureau of Competition.

Over the past few years, the Bureau has faced a surprising number of failing firm claims by merging parties. Even when the economy was booming, we heard many iterations of the same argument: The acquired firm is failing. The acquiring firm is failing. Both firms are failing (which presumably would justify the merger on the basis that if you tie two sinking rocks together, they’re more likely to float). The entire industry is failing.