Competition Matters


Celebrating Women’s History Month at the FTC

“Oh, if I could but live another century and see the fruition of all the work for women. There is so much yet to be done.” – Suffragist Susan B. Anthony (1820-1906)

The consumer movement, trust-busting, the women’s movement, and the work of the FTC have traveled parallel (and often intersecting) paths. Women’s History Month offers us a chance to consider the contribution women have made to the mission of the FTC and the unprecedented moment in women’s history we’re witnessing at the FTC today.

Antitrust Violation vs. Injury-in-Fact: A distinction that makes a difference

There is a basic but important difference between antitrust cases brought by the government and those brought by private parties: All plaintiffs, including government enforcers like the FTC, must prove an antitrust violation, which requires showing harm to competition. But private plaintiffs must make an additional showing: to establish antitrust ‘standing,’ private plaintiffs must prove that the antitrust violation caused harm to them.

HSR threshold adjustments and reportability for 2016

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. The PNO fields many questions about the upcoming adjustments to the HSR thresholds from parties whose transactions may take place around the time of the revisions.

The FTC opens the hood on automobile distribution

For many of us, the holiday season involves at least one loooong automobile ride. We travel over the river and through the woods in our beloved cars, our trunks stuffed with presents for family and friends. Today, the way we buy those presents and the way we buy the car that carries them look very different. While the retail landscape has changed dramatically in the last 50 years, the system of automobile sales in the United States has stayed mostly the same. Are consumers benefitting from the current distribution system for automobiles or are changes needed?

Competition sparks improvements in local electricity markets

The New York State Public Service Commission is on a path to move away from traditional cost-of-service regulation for electric utilities. This is good news for New York consumers who might be looking to lower their electric bill or reduce their reliance on the power grid. In fact, the policy move is motivated by advances in energy technology, increased concerns about the environmental impact of fossil-fuel generation, and consumers’ interest in having more direct control over their electric service.

Pardon the interruption

During an antitrust investigation, we often hear that our concerns fail to account for disruptive forces that will soon emerge and shake up the competitive dynamic in the market in the near future—from an innovative newcomer or from the emergence of a completely new business model.  I recently went to the Pacific Northwest, a hotbed of innovation and new ideas, to talk about the role of disruptive business models in U.S. antitrust analysis.

Comings and goings

With a tinge of both nostalgia and anticipation, I am pleased to announce a number of management changes at the Bureau. As you may have heard, Deputy Director Steve Weissman will be returning to private practice shortly. Steve is heading back to Baker Botts, where he will help lead the firm’s antitrust group. Steve has been a terrific deputy with numerous accomplishments, including leading the FTC team to victory in FTC v. Sysco/US Foods.

Calculating the value of stock under HSR rules

The Hart-Scott-Rodino statute and rules contain a number of reporting thresholds for transactions subject to premerger notification filing with the FTC and DOJ. In this post, we are going to focus on how to value publicly traded stock in order to determine reportability under the various filing thresholds. Some of the most frequent questions we get involve how to value acquisitions of voting securities in 801.30 transactions, given the volatile nature of the stock market.

What are the HSR notification thresholds for voting securities?

Doing good well

Antitrust law seeks to promote efficiency and economic welfare. But companies may want to collaborate to advance other social objectives. I recently spoke at a program entitled “Antitrust Law and Corporate Social Responsibility,” hosted by the Council for International Business. The purpose of the program was to discuss whether and how companies can work together to achieve social welfare goals—such as environmental objectives, health and safety objectives, or labor objectives—without running afoul of the antitrust laws. I made two key points.

The when and what of active supervision

Earlier this year, the U.S. Supreme Court ruled that the North Carolina State Board of Dental Examiners violated the federal antitrust laws by preventing non-dentists from providing teeth whitening services in competition with the state’s licensed dentists. N.C. State Bd. of Dental Exam’rs v. FTC, 135 S. Ct. 1101 (2015). The Board had argued that, because it is a state agency, it is exempt from liability under the federal antitrust laws.

Change may be coming to a plug near you

It’s easy to be blasé about electric power: Flip a switch and the lights come on. Plug in your phone and it recharges. Maybe you have a vague sense that behind the plug is a vast infrastructure of lines and junction boxes, all leading back to far-away power plants that generate electricity. But new technologies and growing interest in ‘green’ energy sources are prompting policymakers to rethink public utility regulation – and suddenly, what happens behind that plug could get a whole lot more interesting.

“Investment-only” means just that

Today, the Commission (with the help of our friends at the Justice Department) filed a proposed settlement in federal court to settle charges that three funds managed by Third Point violated the Hart-Scott-Rodino Act by failing to make the necessary premerger notification filings when they acquired shares of Yahoo! Inc.

Notable trends in merger review: inside the HSR Annual Report

Today the FTC and DOJ released the FY 2014 Hart-Scott-Rodino Annual Report, which details the agencies’ merger review and enforcement program for October 1, 2013 through September 30, 2014. As the only complete source of data on federal merger enforcement, the HSR Report is worth a close read, but here’s a little preview of our top four most interesting observations, trends, and takeaways from this year’s report.

A fine balance: toward efficient merger review

One of the key functions of the Bureau of Competition is to analyze mergers. Obtaining information through Second Requests is an essential aspect of our review process for proposed acquisitions. Even though the FTC and DOJ on average issue a Second Request in less than 5 percent of filed transactions, for the few that do require more extensive review, we have long recognized the burden they impose. The challenge is to find a balance between our need for information to determine whether there is a potential law violation and avoiding unnecessary costs for businesses subject to review.