The U.S. Federal Trade Commission (“FTC”) issued a data report on January 4 regarding its horizontal merger investigation and enforcement action record over the past fifteen years. The report shows, sector by-sector, the level of market concentration triggering FTC action, as well as the impact of other antitrust enforcement variables including the presence of hot documents, the presence of strong customer complaints, the number of significant competitors, and entry conditions.
One major take-away from the report is that oil sector and pharmaceutical sector mergers stand out for antitrust scrutiny. Another practical implication of the report’s data is that counsel should place heightened focus on managing document creation and customer communications, both in connection with prospective mergers and in the ordinary course of business.
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