Competition Matters


You don’t have to write a check to acquire an HSR-reportable interest

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.

Avoiding antitrust pitfalls during pre-merger negotiations and due diligence

Most antitrust practitioners are attuned to advising clients about the antitrust risk that a proposed acquisition may violate Section 7 of the Clayton Act. But counsel and clients must also be conscious of the risks of sharing information with a competitor before and during merger negotiations—a concern that remains until the merger closes.

HSR threshold adjustments and reportability for 2018

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.

Vertical mergers, yesterday and today

Last week, I spoke about a topic that has attracted a lot of popular interest in antitrust enforcement lately—vertical merger enforcement. We view vertical mergers as an important part of the FTC’s enforcement agenda. However, it is true that, relative to horizontal mergers, vertical mergers are a smaller part of the workload of the FTC and the DOJ’s Antitrust Division.

Voices for Liberty Videos: “Fireside chat” participants explain burdens of unnecessary occupational licensing

When Acting Chairman Ohlhausen launched the FTC’s Economic Liberty Task Force in early 2017 to shine a spotlight on occupational licensing, the goal was not only to advocate for needed reforms. She also wanted to give a voice to the millions of American workers and consumers – especially military families – whose lives and livelihoods are impacted by misguided policies.

“All” means All: Submit side agreements with an HSR filing

When preparing an HSR filing for a proposed acquisition, some practitioners counsel their clients not to submit binding agreements or side letters negotiated between the merging parties that reflect the parties’ antitrust review obligations, risk-sharing commitments, and potential remedial measures. Some claim that these “side agreements” are ancillary to the main agreement, while others withhold such side agreements believing they are protected by a common interest privilege or as part of a joint defense agreement.

Have an HSR question? Help us answer you quickly

The staff of the Premerger Notification Office processes, reviews, and answers inquiries related to around two thousand transactions, involving roughly 4,000 HSR filings, each year. The number one priority of the PNO is to process incoming HSR filings in a timely fashion so Bureau of Competition and Antitrust Division litigation staff can review filings of interest and we can clear non-problematic transactions for closing as quickly as possible.

DOJ’s Premerger and Division Statistics Unit is moving!

On Monday, November 27, 2017, the Premerger and Division Statistics Unit of the Antitrust Division of the Department of Justice is relocating to the Liberty Square Building at 450 Fifth Street, N.W.

As of November 27, 2017, all mail and overnight deliveries related to HSR filings should be addressed to:

Department of Justice
Antitrust Division
Premerger and Division Statistics Unit
450 Fifth Street, N.W.
Suite 1100
Washington, DC 20530-0001

What do we know about the effects of occupational licensing?

If you’re a competition policy wonk (a title we both wear proudly), we probably don’t need to convince you to stop by or tune in to the FTC’s upcoming November 7 roundtable discussion to explore ongoing research about the effects of occupational licensing on competition, consumers, and the workforce. For the rest of you…please read on, and give us a chance to try.

Diving into the data in the HSR Report

Today the FTC and DOJ released the Hart-Scott-Rodino Annual Report for Fiscal Year 2016. The Report is the 39th accounting of the agencies’ premerger notification program under the HSR Act, and it covers all premerger notification and merger enforcement activity initiated between October 1, 2015 and September 30, 2016. Here is a data-driven summary of the Report.

You can’t certify substantial compliance with just a “Partial Log”

In order to reduce the burden associated with submitting detailed information for every document withheld on a claim of privilege, the Bureau has established an optional two-step privilege log process. Rather than submitting a complete privilege log for all withheld documents and custodians, parties may opt to initially submit an abbreviated log of documents withheld on a claim of privilege. This is called a Partial Log.

Getting in Sync with HSR Timing Considerations

The Hart Scott Rodino (HSR) Act and Rules require that parties to certain mergers and acquisitions submit premerger notification filings and wait before consummating the transaction. Parties must often balance the HSR filing requirement with a number of other regulatory requirements, as well as any conditions to closing.

Economic Opportunity Across State Lines: Enhancing Occupational License Portability

Moving to a new state can be daunting—packing, finding a new place to live, looking into options for schools, and finding the best local pizzeria. But if you’re one of the millions of Americans who need a license in order to work, the biggest hurdle could be getting a license in your new state. And it’s likely to involve more than just paperwork and fees. Because licensing requirements often vary from state to state, you might have to take additional courses or obtain specialized on-the-job experience—even if you’ve been working in the same profession for years.

Turning up the volume on hearing care

Chirping birds, babbling brooks, soft rain showers, and children gleefully playing outdoors – these sounds of spring bring us joy, especially after a long winter. But for the millions of Americans who have hearing loss, full enjoyment of these and other everyday sounds can be out of reach. Others might benefit from listening assistance in certain situations, such as in a noisy restaurant or while watching TV. For too many, even participation in a simple conversation can be difficult.

Loveseats, lilies, and licensing: Economic liberty opens doors to opportunity

Should the government spend its time protecting consumers from ugly throw pillows or droopy floral arrangements? Should the government force an African hair-braiding expert to also study makeup application or nail art in order to work? Should a job-seeking military spouse be expected to comply with a whole new set of licensing requirements—and pay a hefty fee—every single time the family relocates to a different state?