Federal Antitrust Enforcers Announce Merger Policy Review

January 19, 2022

Click for PDF

On January 18, 2022, the US Federal Trade Commission (“FTC”) and the Antitrust Division (“DOJ”) of the Department of Justice held a press conference to announce a joint public inquiry aimed at revising the agencies’ merger policies. The agencies’ Horizontal Merger Guidelines, previously revised in 2010, reflect the framework the agencies use to assess whether M&A transactions between actual and potential competitors violate antitrust laws. The 2020 Vertical Merger Guidelines — which the FTC previously announced it would no longer follow — address mergers of companies at different levels of a supply chain (e.g., manufacturers and their customers).

FTC Chairperson Lina Khan and Assistant Attorney General (“AAG”) Jonathan Kanter opened the conference by commenting on the agencies’ decision to conduct a merger policy review, along with details of the accompanying Request for Information (“RFI”). The theme of their comments was a shared desire to “strengthen the common merger guidelines to meet the challenges and realities of the modern economy”.[1]

The RFI addresses fifteen topics related to merger review,[2] but Chair Khan and AAG Kanter focused their remarks on a handful of priorities:

  • Monopole: The agencies plan to examine how the merger guidelines should more specifically address transactions that could create or strengthen dominant companies, considering a range of “business strategies and incentives” that could spur takeovers by such companies. For example, the agencies’ RFI asks how the guidelines should treat “serial” and “rollup” acquisitions of competitors by large corporations and private equity firms — and whether, overall, such transactions “could tend to constitute a monopoly in violation of Section 7.” to accomplish”. the Clayton law.
  • work questions: Agencies are seeking comments and information on whether the guidance should specifically address the potential impact of mergers on employees and employees. By doing so, the agencies are signaling that they can consider factors such as the impact of a merger on wages, salaries and other forms of compensation. You’ll also see whether the guidance should address job losses as apparent merger efficiencies.
  • Evidence of anti-competitive effects: The agencies are asking for information on whether the agencies’ current guidance and merger analysis are unduly constrained in their focus on the pricing effects of a merger. In particular, the Agencies will consider whether other indicia of anti-competitive effects, such as direct competition between the merging parties, should be given more weight and whether such evidence is better suited to analyzing mergers in specific sectors.
  • Accounting for “market realities:” The agencies are seeking advice on whether defining markets in a “dynamic and multidimensional economy” is a reliable tool for assessing the potential harm of mergers. They are also looking for information on how to capture market dynamics and whether policies should address competition in the form of “stacks” or “clusters” of component products and services that drive digital and physical supply chains.
  • Convergence of horizontal and vertical fusion analysis: The agencies are asking for information on whether the traditional separation of horizontal and vertical merger analysis accurately reflects the realities of modern economics. They will generally assess whether rigid categories accurately capture complex and dynamic business relationships, particularly in technology markets.

Focus on digital markets

The above concerns reflect agency leadership’s view that current merger guidelines do not fully address the types of anti-competitive mergers that exist in today’s technology markets in general and digital markets in particular. Indeed, AAG Kanter stated that “[o]Our country depends on competition to drive progress, innovation, and prosperity. . . [and for that reason] [w]We need to understand why so many industries have too few competitors and think carefully about how we can ensure that our merger enforcement tools are fit for purpose in the modern economy.” The RFI specifically mentions digital markets. Agency officials said they want to create an analytical roadmap for evaluating digital markets, as such markets pose “different issues” such as tipping, zero price issues and data aggregation.

Statement by Commissioners Noah Joshua Phillips and Christine S. Wilson

Following the announcement, FTC Commissioners Noah Joshua Phillips and Christine S. Wilson issued a joint statement endorsing efforts to solicit public comment on the guidelines because “they reflect [the FTC’s] Attitude of continuous learning.” Her comments also highlight that the 2010 Horizontal Merger Guidelines have been widely accepted by the courts because they are based on a consensus framework developed over decades. They noted that the 2010 guidelines had succeeded in providing transparency and predictability to the business community. Any policy revisions must reflect the manageability, transparency and predictability considerations that made the 2010 policy successful. In order to fully consider these considerations, Commissioners Phillips and Wilson encourage the public to submit comments and concerns about both the legal and economic issues set out in the RFI, as well as the assumptions underlying those specific issues.

Next steps and implications

Chair Khan bemerkte: „[t]his request. . . should take care of that [the agencies’] Merger policies accurately reflect and equip modern market realities [the agencies] to vigorously enforce the Illegal Business Act.” [3] As expected by many, under the Biden administration, the FTC and DOJ are proceeding with revisions to federal merger guidelines that will reflect the administration’s goal of strengthening antitrust enforcement. It remains to be seen whether and how the revised guidelines will address this broad range of issues and whether they will be adopted by the courts. Commissioners Phillips and Wilson noted that the existing guidance incorporates best legal and economic principles and improves transparency for merging parties. For new guidelines to have the same impact, they need to reflect a similar approach.

Companies concerned about the forthcoming guidelines should start making plans now to ensure these concerns are fully documented before the agency. As Commissioners Wilson and Philips pointed out, substantive, evidence-based comments – whether submitted directly by a company or by a trade association – have historically-conditioned guidelines that reflect a consensus framework. Businesses and governments alike have an interest in a merger review framework that leads to the necessary enforcement while avoiding undue deterrence in merger and acquisition activity.

________________________

[1] Statement by AAG Jonathan Kanter (January 18, 2022).

[2] The full list of topics is as follows: Purpose, Damages and Scope, Types and Sources of Evidence, Coordinated Effects, Unilateral Effects, Conjecture, Market Definition, Potential and Emerging Competition, Remedial Measures, Monopsony Power and Labor Markets, Innovation and Intellectual Property, Digital Markets, Markets with special characteristics, barriers to entry and mature companies, efficiencies and failing and ailing companies.

[3] Statement by Chairwoman Lina Khan (January 18, 2022).


The following attorneys for Gibson Dunn prepared this client alert: Adam Di Vincenzo, Rachel Brass and Kareem Ramadan.

Gibson Dunn’s attorneys are available to assist you with any questions you may have about these developments. Please contact Gibson Dunn’s attorney, with whom you normally work in the firm’s antitrust and competition practice, the authors, or one of the following:

Rachel S. Messing – San Francisco (+1 415-393-8293, [email protected])
Adam di Vincenzo – Washington, DC (+1 202-887-3704, [email protected])
Kristen C. Limarzi – Washington, DC (+1 202-887-3518, [email protected])
Joshua Lipton – Washington, DC (+1 202-955-8226, [email protected])
Richard G. Parker – Washington, DC (+1 202-955-8503, [email protected])
Michael J. Perry – Washington, DC (+1 202-887-3558, [email protected])
Stephen Weissman – Washington, DC (+1 202-955-8678, [email protected])

© 2022 Gibson, Dunn & Crutcher LLP

Attorney Promotion: The attached materials have been prepared for general informational purposes only and are not intended as legal advice.

Reference-www.nach-welt.com

Leave a Reply

Your email address will not be published.