Foley Forward: Trends 2023
Manufacturing companies should actively prepare for heightened antitrust scrutiny of their business practices in 2023, including practices that have not traditionally garnered the focus of the federal antitrust enforcers.
Employee noncompetes have recently come under fire from the Federal Trade Commission (FTC). In the first week of 2023, the FTC announced a proposed regulation that would implement a sweeping ban on employee noncompete clauses across the United States with only a few exceptions. The proposed regulation would apply to noncompetes with all types of employees and retroactively to existing noncompete agreements. The FTC is soliciting feedback to its proposed rule through its formal comment process. Manufacturers should evaluate whether to submit comments to the FTC if the proposed ban causes harm to their legitimate business. Manufacturers should also take steps now to evaluate how they are protecting their businesses, and whether other types of agreements, such as a non-disclosure agreement, may make sense now given the proposed ban.
In November 2022, the FTC announced its expanded view of what constitutes an “unfair method of competition” under Section 5 of the FTC Act. In a Policy Statement, the FTC indicated its intent to investigate and challenge business practices that have not historically raised antitrust concerns or that do not otherwise constitute violations of the federal antitrust laws as insidious “unfair methods of competition” in need of redress. This means that the FTC may challenge business practices like the offering of loyalty rebates, the tying or bundling of products, or exclusive dealing arrangements, even if the manufacturer engaging in the practice operates in a fragmented market or where there is no indication that the practice actually harms consumers or competition. Manufacturers should evaluate use of these types of restrictions and consider expanded antitrust training for employees to account for the risks in this area.
Manufacturers should also be prepared for the FTC and the U.S. Department of Justice Antitrust Division (DOJ) to continue aggressive antitrust merger enforcement in 2023, particularly in those industries experiencing supply chain consolidation. After withdrawing the 2020 Vertical Merger Guidelines in Fall 2021, the FTC and DOJ are expected to issue updated vertical and horizontal guidelines early this year. The revised guidelines are likely to feature a combined analysis of transactions involving both horizontal and vertical impacts and will likely utilize non-traditional methods of analysis – for example, looking beyond the efficiencies of a transaction to evaluate competitive harms. The agencies seem primed to challenge more vertical mergers (i.e., mergers between companies involved in different stages of the supply chain) than ever before.
Finally, on February 3, 2023, the DOJ announced its withdrawal of three antitrust policy statements: Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993); Statements of Antitrust Enforcement Policy in Health Care (Aug. 1, 1996); and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011). While these statements were originally intended for healthcare markets, they have been applied more broadly over time to other sectors to provide guidance on acceptable practices and safe harbors relating to a host of commercial behavior including joint ventures, joint purchasing arrangements, and information sharing among actual or potential competitors. In its formal Withdrawal Statement, DOJ characterized these guidelines as “outdated enforcement policy statements” that are “overly permissible on certain topics, such as information sharing.” DOJ did not indicate any intent to update the guidelines, but instead supports a case-by-case enforcement approach. Many manufacturers engage in information exchanges under the safe harbors in these guidelines, but DOJ cautions that some of these exchanges – particularly with the greater use of algorithms, the speed of data and the ability to de-anonymize sensitive information – can enable price and wage fixing, and other forms of illegal conduct, which warrants this new scrutiny to reflect existing market realities. DOJ also warned that merging companies with a history of sharing competitively sensitive information will face heightened review during the merger clearance process as well.
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