Competition Matters

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Making the Second Request Process Both More Streamlined and More Rigorous During this Unprecedented Merger Wave

Given the recent surge in merger filings and the Commission’s obligation to protect Americans from illegal transactions, the Bureau of Competition is instituting new process reforms to best to use its limited resources. These reforms build on other enhancements the Bureau announced in an August blog post.

Working Better Together Volume One: Advancing Both Consumer Protection and Antitrust Enforcement to Protect all Americans from Corporate Bad Actors

The FTC was created to act as a guardian of fair markets, armed with broad authority to ensure our economy is one in which consumers, workers, and honest businesses can thrive.

Chair Khan is committed to realizing that vision of an agency that takes on problems holistically, rather than from a consumer protection or competition lens alone. This means ensuring that the Commission’s two enforcement bureaus – the Bureau of Competition and the Bureau of Consumer Protection – are working hand-in-hand to root out marketplace abuses.

Protecting Americans at the gas pump through aggressive antitrust enforcement

The FTC is committed to policing gasoline and diesel markets to protect the American public against illegal acts. Given high prices at the pump these days, the Bureau of Competition is redoubling its commitment to police unfair methods of competition in wholesale and retail gasoline and diesel sales.

Reforming the Pre-Filing Process for Companies Considering Consolidation and a Change in the Treatment of Debt

As the FTC continues to experience a massive surge in planned merger deals, we are looking at every step of the merger filing process to identify ways to streamline and maximize our efficiency. Under the Hart-Scott-Rodino Act (“HSR” or the Act), companies are required to file notice of mergers over a certain size before they can close the deal. This is not an application process – it is for law enforcement purposes.

Wait for it—a Waiting Period Letter confirms your HSR filing

Once you’ve submitted a Hart-Scott-Rodino filing to the FTC’s Premerger Notification Office, make sure you receive official confirmation that your filing has been received. We’ve compiled important tips on communications regarding the status of filings and the applicable waiting period.

HSR Early Termination After a Second Request Issues

On February 4, 2021, the Federal Trade Commission, with the support of the Department of Justice, announced the temporary suspension of granting early termination (ET) under the Hart-Scott-Rodino Act and its implementing rules (HSR Act).  This decision reflected a need to pause during the transition to a new administration combined with the unprecedented volume of HSR filings (HSR transactions for the month of February hit a

HSR threshold adjustments and reportability for 2021

When Congress passed the Hart-Scott-Rodino Antitrust Improvements Act of 1976, it created minimum dollar thresholds to limit the burden of premerger reporting. In 2000, it amended the HSR statute to require the annual adjustment of these thresholds based on the change in gross national product. As a result, reportability under the Act changes from year to year as the statutory thresholds adjust.

2020: Remote work with real results

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.

Reminder: Join us (virtually) for HSR Q&A sessions starting Monday, November 9

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

“All Documents” means more than emails and files

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.  

Got questions about the HSR Rulemaking? We’ll answer them live (virtually).

The FTC welcomes comments on its recent HSR Rulemaking initiative, and to facilitate a robust and thoughtful set of public comments, the Commission is holding a series of three live virtual workshops in November to answer the public’s questions before comments are due. 

A Fiscal Year Like No Other

With the conclusion of FY2020, we look back on a year unlike any other in the history of the Bureau of Competition.  The year has been marked by a combination of exceptional commitment from the Bureau’s staff, enforcement achievements that would be remarkable in any year but which are nothing short of incredible in this one, and a string of enforcement and policy successes.

Seeing the whole picture on avoidance devices

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.

FTC releases agenda for Data To Go virtual workshop

“Take out” takes on a whole new meaning when it involves your data. Consumers and industry members are giving more thought to the issue of data portability – the ability of consumers to move data (such as emails, contacts, calendars, financial information, health information, favorites, friends, or content posted on social media) from one service to another or to their own files.

The hearing may be virtual, but the rules are the same

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.

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