On June 30, 2020, the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) (together, the “Agencies”) issued new Vertical Merger Guidelines (“Guidelines”). These Guidelines mark the first time the Agencies have issued joint guidelines on vertical mergers, and replace the DOJ’s 1984 Non-Horizontal Merger Guidelines. The new Guidelines follow the Agencies’ earlier release of Draft Vertical Merger Guidelines (“Draft Guidelines”) in January 2020 and provide important insight on how the Agencies assess the likely competitive impact of vertical mergers.
Background and Process -
Prior to 2017, antitrust challenges to vertical mergers were rare, as it was presumed that most vertical mergers were uncompetitive. However, vertical mergers have come under increasing agency scrutiny in recent years, including DOJ’s unsuccessful 2017 challenge of AT&T’s proposed acquisition of Time Warner Inc. Publication of the Guidelines also comes amidst strong political pressure for increased scrutiny of merger activities, particularly during the current public health crisis. On June 18, 2020, several U.S. Senators expressed concerns that...
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