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FTC and DOJ Seek Public Comments on Merger Guidelines

The Federal Trade Commission and the U.S. Department of Justice’s Antitrust Division announced last week that they are soliciting public comments on ways to “modernize federal merger guidelines” to assist the agencies in...more

Hospital Transactions Subject to Hart-Scott-Rodino Reporting Obligations See Dramatic Rise in Second Requests for Information

Hospital transactions, including acquisitions and mergers, that meet Hart-Scott-Rodino (HSR) thresholds must, subject to any available exception, be reported to the Federal Trade Commission (FTC) and the Antitrust Division of...more

Podcast: How Will Biden’s Executive Order Impact Future Hospital Mergers? - Diagnosing Health Care [Video]

We’re beginning to see how mergers and acquisitions in the hospital industry are being impacted by President Biden’s executive order promoting competition in the American economy. The Federal Trade Commission recently...more

Federal Trade Commission Continues Quest to Stem the Merger Tide

The Federal Trade Commission (FTC) has reimplemented a policy of requiring all merger enforcement orders to include the requirement that acquisitive firms obtain prior approval from the FTC before closing any future...more

FTC Announces Proposed Changes to Second Request Process, but Commissioner Phillips Raises Concerns

On September 28, 2021, the Federal Trade Commission (FTC) issued a blog post announcing several changes to how the FTC will investigate mergers and acquisitions and how it will approach second-request negotiations. The blog...more

FTC Chair Outlines Vision and Priorities

Chair Khan’s Priorities - In a memo dated September 22, 2021, the Chair of the Federal Trade Commission (“FTC”), Lina Khan, described for the FTC Staff and fellow Commissioners what she described as her “vision and...more

A Divided FTC Withdraws 2020 Vertical Guidelines, Introducing Uncertainty into Review of Vertical Mergers

On September 15, 2021, by a 3-2 vote, the Federal Trade Commission (“FTC”) decided to withdraw the vertical merger guidelines that had been issued in 2020. In its statement supporting the withdrawal, the majority raised...more

FTC Responds to Tsunami of HSR Filings

A Surge of HSR Filings - On August 3, 2021, the Acting Director of the Bureau of Competition of the Federal Trade Commission (“FTC”) authored a blog post discussing the tsunami of Hart-Scott-Rodino (“HSR”) filings that the...more

FTC Reinstates Notice and Approval Requirements in All Merger Settlement Agreements

Prior to 1995, the Federal Trade Commission (“FTC”) required parties to a Commission Order entered in a merger case to obtain the FTC’s prior approval for any future transaction in similar markets above a de minimis...more

Biden Issues Executive Order Promoting Competition

On July 9, 2021, President Biden issued an Executive Order on Promoting Competition in the American Economy (the “EO”). The EO casts a wide net, encompassing many industries, including health care....more

Focus on Antitrust in Health Care Transactions

On May 19, 2021, the Senate Subcommittee on Competition Policy, Antitrust, and Consumer Rights of the Committee of the Judiciary held a hearing on Antitrust Applied: Hospital Consolidation Concerns and Solutions. The...more

Public Comment Period on Pharmaceutical Mergers Opens and Exposes Dueling Philosophies Among FTC Commissioners

The Multilateral Pharmaceutical Merger Task Force, a working group formed by the Federal Trade Commission (“FTC”), the Antitrust Division of the Department of Justice, State Attorneys General, and counterpart enforcement...more

FTC Annual Review Shows Focus on Health Care

On March 25, 2021, the Federal Trade Commission (“FTC”) released its 2020 Annual Highlights report. The report’s statistics show that 46 percent of the Bureau of Competition’s enforcement actions related to the health care...more

Merger Reviews Likely to Address More Expansive—and Possibly New—Theories of Harm

Previously, as a member of the Republican-controlled Federal Trade Commission (“FTC”), Commissioner Rebecca Kelly Slaughter chided both the FTC Staff and her fellow Commissioners for, in her estimation, a failure to consider...more

A Private Right to Seek Divestiture Under Section 7 of the Clayton Act – from Theory to Reality

Section 7 of the Clayton Act (15 U.S.C. § 18) prohibits mergers and acquisitions where “the effect may be substantially to lessen competition, or tend to create a monopoly.” Although drafted in part to address potential...more

FTC’s Retrospective Study of Health Care Facility and Physician Group Mergers

On January 14, 2021, the Federal Trade Commission (“FTC”) announced that it was launching a study to examine the impact of health care facility and physician group mergers. Accordingly, the FTC stated that it had requested...more

FTC Commissioners Question Use of Divestiture as an Effective Merger Remedy

Divestiture has long been considered an appropriate and effective remedy for anticompetitive horizontal mergers. The Federal Trade Commission (“FTC”), as reflected in the Statement of the Bureau of Competition entitled...more

FTC Moves to Revamp and Increase Merger Retrospective Reviews

On September 17, 2020, the Federal Trade Commission (“FTC”) announced efforts to revamp and increase its retrospective research efforts. This retrospective analysis, which has been a continuing project for the FTC, “seeks to...more

Department of Justice Issues Updated Merger Remedies Manual

On September 3, 2020, the U.S. Department of Justice (“DOJ”) updated its Merger Remedies Manual (“the Manual”). This is the first update of the Manual since 2011, and it reinforces DOJ’s commitment to effective structural...more

Why the Heartburn Over an Antitrust Safety Zone?

When released in draft form for public comment on January 10, 2020, the Vertical Merger Guidelines (“Vertical Guidelines”) included a safety zone indicating that “the Agencies [i.e., the U.S. Department of Justice and the...more

Do the New FTC/DOJ Vertical Merger Guidelines Provide Clarity?

On June 30, 2020, the Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) released final Vertical Merger Guidelines. As noted previously, the agencies had issued draft guidelines that were subject to...more

Congressional Pressure Builds for Increased Antitrust Scrutiny of Vertical Mergers

In a June 18, 2020, letter to the heads of the Antitrust Division of the Department of Justice and the Federal Trade Commission, several U.S. Senators expressed their views that the draft vertical merger guidelines...more

Expect Delays in the HSR Clearance Process Due to the Coronavirus Pandemic

The Premerger Notification Office of the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) announced that their review of Hart-Scott-Rodino (“HSR”) filings will continue despite...more

Reporting Thresholds Under Hart-Scott Rodino Will Increase on February 27

Adjustments to the reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“Act”) will become effective on February 27, 2020. At that time, the minimum size-of-transaction threshold goes up to $94...more

A New Antitrust “Safety Zone” for Vertical Mergers

The U.S. Department of Justice and the Federal Trade Commission (collectively, “Agencies”) recently released for public comment their much-anticipated draft Vertical Merger Guidelines (“Guidelines”) that purport to “outline...more

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