Joel Mitnick at Cadwalader, Wickersham & Taft LLP

Antitrust Enforcement Mid-Year 2023 Review

The year 2023 is proving to be a milestone year for antitrust enforcement. Less so for novel cases and investigations and more so for the generational changes being proposed by the enforcement authorities for merger...more

7/28/2023 / Anti-Competitive , Antitrust Provisions , Competition , Corporate Counsel , Department of Justice (DOJ) , Environmental Social & Governance (ESG) , Federal Trade Commission (FTC) , Hart-Scott-Rodino Act , Information Sharing , Merger Controls , Popular

FTC and DOJ Jointly Issue Draft Merger Guidelines

Proposing a radically different conception of government enforcement merger guidelines, the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”), on July 19, 2023, jointly issued draft merger guidelines...more

7/21/2023 / Antitrust Provisions , Competition , Corporate Sales Transactions , Department of Justice (DOJ) , Federal Trade Commission (FTC) , Merger Controls

EU Issues Competition Safe Harbor Guidelines For Sustainability Agreements

The European Commission recently issued Guidelines “on the competitive assessment of agreements between competitors that pursue sustainability objectives (‘sustainability agreements’).” Recognizing sustainability as a “core...more

6/13/2023 / Climate Change , Competition , Corporate Counsel , European Commission , Greenhouse Gas Emissions , International Treaties , New Guidance , Sustainability

UK Proposes Guidance to Shield Competitor Agreements on Climate Change

The UK’s Competition Markets Authority (CMA) has issued a proposed rule, subject to public comment through April 11, 2023, that would provide guidance on the application of UK competition law to agreements between or among...more

3/8/2023 / Climate Change , Comment Period , Competition , Corporate Counsel , Environmental Social & Governance (ESG) , Proposed Rules , UK Competition and Markets Authority (CMA)

UK’S CMA Expands Investigation of Greenwashing

The UK’s Competition Markets Authority (CMA) issued a press release on January 26, 2023 announcing a potentially wide ranging investigation into the “accuracy of ‘green’ claims made about household essentials – such as food,...more

2/6/2023 / Climate Change , Corporate Governance , Corporate Social Responsibility , Environmental Social & Governance (ESG) , Goods or Services , Greenwashing , Retail Market , UK Competition and Markets Authority (CMA)

United Kingdom Competition Authority Announces Support for Climate Change Agreements Among Competitors

In a recent speech to the Scottish Competition Forum, Sarah Cardell, newly installed Chief Executive of the UK’s Competition Markets Authority (CMA), laid out her vision for analyzing agreements among competitors that foster...more

2/3/2023 / Antitrust Provisions , Climate Action Plan , Climate Change , Competition , Environmental Social & Governance (ESG) , Net Zero , Sustainability , UK , UK Competition and Markets Authority (CMA)

Antitrust Risks of ESG Initiatives: Rhetoric vs. Reality

Recently, there have been rumblings of antitrust enforcement in response to the increasing prominence of corporate policies furthering environmental, social and governance (‘ESG’) goals. The ESG moniker has been used as...more

1/31/2023 / Antitrust Provisions , Corporate Governance , Corporate Social Responsibility , Environmental Social & Governance (ESG) , Risk Mitigation , Sherman Act

FTC Considering Updates to Environmental “Green Guides”

On December 14, 2022, the Federal Trade Commission (FTC) announced that it is seeking public comment “on potential updates and changes to the Green Guides for the Use of Environmental Marketing Claims” (the Notice). The...more

1/6/2023 / Advertising , Comment Period , Environmental Claims , Federal Trade Commission (FTC) , FTC Act , Green Guides , Green Marketing , Greenwashing , Marketing , Public Comment , Section 5 , Sustainability , Unfair or Deceptive Trade Practices

Greenwashing: FTC Considering Updates to Environmental “Green Guides”

On December 14, 2022, the Federal Trade Commission (FTC) announced that it is seeking public comment “on potential updates and changes to the Green Guides for the Use of Environmental Marketing Claims” (the Notice). The...more

1/5/2023 / Advertising , Climate Change , Comment Period , Environmental Claims , Federal Trade Commission (FTC) , Green Guides , Green Marketing , Marketing , Product Labels , Regulatory Agenda , Regulatory Reform , Section 5

ESG Risks of Antitrust Enforcement and Liability

Business enterprises are under pressure the world over to develop and adopt policies that promote social, environmental and governance (“ESG”) goals. ESG is a broad label, covering issues that include, among others,...more

11/14/2022 / Antitrust Provisions , Climate Action Plan , Competition , Corporate Social Responsibility , Environmental Social & Governance (ESG) , Sherman Act , Sustainability

United States Courts Possess Personal Jurisdiction over Foreign Banks in Ongoing LIBOR Case

The United States Supreme Court denied a petition for certiorari filed by six foreign banks that argued that U.S. courts lacked personal jurisdiction over them. (Lloyd’s Banking Group. PLC v. Schwab Short-Term Bond Market...more

6/24/2022 / Antitrust Conspiracies , Charles Schwab , Denial of Certiorari , Financial Instruments , Foreign Banks , Libor , Market Manipulation , Personal Jurisdiction , Popular , SCOTUS

FTC Sues to Block Lockheed’s Proposed Acquisition of Aerojet Rocketdyne in Milestone Defense Industry Vertical Challenge

The Federal Trade Commission (“FTC”) filed suit yesterday to block Lockheed Martin Corporation’s proposed $4.4 billion acquisition of Aerojet Rocketdyne Holdings Inc., announced back in December 2020. Aerojet, the last...more

1/26/2022 / Acquisition Agreements , Anti-Competitive , Antitrust Violations , Competition , Corporate Counsel , Defense Contracts , Defense Sector , Department of Defense (DOD) , Enforcement Actions , Federal Trade Commission (FTC) , Goods or Services , Lockheed Martin , Prime Contractor , Suppliers , Vertical Mergers

FTC Announces 2022 Thresholds for Merger Control Filings under HSR Act and Interlocking Directorates under the Clayton Act

The Federal Trade Commission (“FTC”) has increased the dollar jurisdictional thresholds necessary to trigger the reporting requirements in the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”); the...more

1/25/2022 / Antitrust Provisions , Federal Trade Commission (FTC) , Hart-Scott-Rodino Act , Interlocking Directorate , New Guidance , Pre-Merger Filing Requirements , Premerger Notifications , Size of Persons Test , Size of Transaction Test , The Clayton Act , Threshold Requirements

FTC and DOJ Announce Project to Develop Progressive Merger Guidelines

On January 18, 2022, the Federal Trade Commission (“FTC”) and the Justice Department’s Antitrust Division (“DOJ”) (together, the “Agencies”) jointly announced plans to “review,” “modernize” and “strengthen” horizontal merger...more

1/19/2022 / Anti-Competitive , Antitrust Provisions , Competition , Corporate Counsel , Department of Justice (DOJ) , Enforcement Priorities , Federal Trade Commission (FTC) , Merger Controls , Monopolization , Private Equity , Request For Information

FTC Rescinds Vertical Merger Guidelines

Change is the only constant of late at the Federal Trade Commission (“FTC”). Newly confirmed Chair Lina Khan has wasted no time in using her three-Democrat majority to overhaul the Commission’s merger enforcement practices. ...more

9/21/2021 / Anticompetitive Behavior , Antitrust Provisions , Competition , Federal Trade Commission (FTC) , Merger Controls , Section 5 , Unfair or Deceptive Trade Practices , Vertical Mergers

One-Two Punch: FTC Does About-Face on Treatment of Debt for HSR Purposes and Casts Doubt on Informal Interpretation Program

In a recent blog post, the Acting Director of the Federal Trade Commission Bureau of Competition announced the reversal of the Federal Trade Commission’s (“FTC”) decades-long position regarding the treatment of debt repayment...more

9/14/2021 / Antitrust Division , Antitrust Provisions , Corporate Sales Transactions , Department of Justice (DOJ) , Federal Trade Commission (FTC) , Hart-Scott-Rodino Act , Payoff Requirements , Premerger Notifications , Threshold Requirements

The President’s Competition Order – One Week On

On July 9, 2021, President Biden issued an “Executive Order on Promoting Competition in the American Economy” (the “Order”). The Order responds to what the President characterizes as a “failed experiment” in lax antitrust...more

7/20/2021 / Antitrust Division , Antitrust Provisions , Biden Administration , Competition , Critical Infrastructure Sectors , Enforcement Priorities , Executive Orders , Federal Procurement Systems , Federal Trade Commission (FTC) , Merger Controls , Regulatory Agenda , Regulatory Oversight , Regulatory Reform

7-Eleven/Speedway: Bumps on the Road to Closing: Are Conventional Closing Conditions Sufficient to Protect Buyer Interests?

In an extraordinary, perhaps unprecedented, action, parties to a proposed deal that had been under investigation for about nine months closed the transaction almost immediately upon expiration of the Hart-Scott-Rodino (“HSR”)...more

5/18/2021 / 7-Eleven , Acquisition Agreements , Antitrust Provisions , Contract Terms , Corporate Sales Transactions , Divestiture , Federal Trade Commission (FTC) , Hart-Scott-Rodino Act , Settlement Agreements

FTC Announces 2021 Thresholds for Merger Control Filings under HSR Act and Interlocking Directorates under the Clayton Act

For the first time since 2010, the Federal Trade Commission (“FTC”) has decreased the dollar jurisdictional thresholds necessary to trigger the reporting requirements in the Hart-Scott-Rodino Antitrust Improvements Act of...more

2/4/2021 / Antitrust Provisions , Competition , Federal Trade Commission (FTC) , Hart-Scott-Rodino Act , Pre-Merger Filing Requirements , Premerger Notifications , Size of Persons Test , Size of Transaction Test , The Clayton Act , Threshold Requirements

DOJ Brings First Criminal “No-Poach” and “Wage-Fixing” Prosecutions; New Focus on Labor Market Prosecutions

What happened? The Department of Justice’s Antitrust Division (“DOJ”) announced that, on January 5, 2021, a federal grand jury returned a two-count indictment charging Surgical Care Affiliates LLC and its related entity...more

1/15/2021 / Anti-Competitive , Antitrust Violations , Criminal Liability , Department of Justice (DOJ) , Employer Liability Issues , Enforcement Actions , Federal Trade Commission (FTC) , Hiring & Firing , New Guidance , No-Poaching , Wage and Hour , Wage-Fixing

Supreme Court to Weigh in College Sports: The Intersection of Antitrust and “Amateurism”

The Supreme Court announced Wednesday that it would hear arguments in the long-running NCAA dispute over student-athlete compensation, granting and consolidating two cases, National Collegiate Athletic Association v. Alston...more

12/21/2020 / Alston v NCAA , Antitrust Violations , College Athletes , NCAA , Restraint of Trade , SCOTUS , Sherman Act

Proposed HSR Amendments Will Affect Financial Investors

On September 21, 2020, the Federal Trade Commission (“FTC”), with the concurrence of the Antitrust Division of the U.S. Department of Justice (“DOJ”), announced a Notice of Proposed Rulemaking and an Advance Notice of...more

10/2/2020 / Advanced Notice of Proposed Rulemaking (ANPRM) , Antitrust Division , Antitrust Provisions , Department of Justice (DOJ) , ETFs , Federal Trade Commission (FTC) , Hart-Scott-Rodino Act , Investment Opportunities , Investors , NPRM , Regulatory Agenda

Private Equity Purchasers and SPACs May Be "Preferred" Divestiture Buyers under New DOJ Guidelines for Merger Remedies

What happened? On September 3, 2020, the Department of Justice (“DOJ”) issued a revised Merger Remedies Manual, which sets forth the Division’s framework for implementing remedies to resolve antitrust concerns in merger...more

9/11/2020 / Antitrust Provisions , Corporate Sales Transactions , Department of Justice (DOJ) , Divestiture , Federal Trade Commission (FTC) , Merger Controls , Private Equity , Special Purpose Acquisition Companies (SPACs)

Justice Department Revises Merger Remedies Guidelines