New Proposed Vertical and Horizontal Merger Guidelines: Increased Antitrust Scrutiny for M&A Activity
Navigating Proposed New Guidelines and Lower Market Concentration Thresholds to Close the Deal
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Antitrust
- event Date
Thursday, October 19, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss the U.S. Department of Justice's (DOJ) and the Federal Trade Commission's (FTC) proposed changes to the Horizontal Merger Guidelines and Vertical Merger Guidelines for M&A activity. The panel will highlight the need for companies to plan carefully for M&A activity and anticipate an increased likelihood of additional regulatory antitrust scrutiny and litigation.
With more than 25 years of experience as an antitrust lawyer in both government and private practice, Mr. Knight advises clients on a full range of competition law matters including mergers, joint ventures, competitor collaborations, distribution issues, price discrimination, monopolization, and intellectual property restraints. He routinely represents clients before federal and state antitrust agencies and federal courts. Mr. Knight also co-heads the firm’s Hart-Scott-Rodino Act premerger notification team. He served as an assistant director of the FTC’s Bureau of Competition from 2003 to 2007, heading the Bureau's Mergers II Division, where he oversaw hundreds of investigations across an array of industries including technology, chemical manufacturing, mining, and agriculture. Mr. Knight has held various leadership positions in the ABA's Section of Antitrust Law over the past 18 years and currently serves on the editorial board of the Section's Antitrust Source publication. He writes and speaks frequently on antitrust enforcement topics.
Mr. Smith is a member of the firm’s Antitrust & Trade Regulation practice, focusing on representing clients in government review of mergers and acquisitions, civil and criminal government investigations, civil antitrust litigation, and antitrust counseling. He has represented parties in all stages of merger clearance, including pre-merger counseling and filing under the Hart-Scot-Rodino (HSR) Act, representation before the U.S. Department of Justice, Antitrust Division, and the Federal Trade Commission, and merger litigation. Prior to joining the firm, Mr. Smith practiced antitrust law at a Washington, DC law firm and was a trial attorney in the Defense, Aerospace, and Industrials section of DOJ’s Antitrust Division, where he investigated and analyzed mergers and acquisitions in a wide variety of industries, including telecommunications, banking, aeronautics, defense, and mining.
Mr. Williams focuses his practice on antitrust issues related to commercial transactions, including mergers and acquisitions; joint ventures and other strategic collaborations; licensing of intellectual property; and pricing, supply, and distribution agreements. His experience includes cross-border matters involving regulatory authorities in China, Japan, South Korea, and Europe. Mr. Williams advises on all aspects of merger control, including evaluating regulatory clearance; advising on transaction structure and antitrust risk allocation in M&A agreements; preparing merger notification filings, including under the Hart-Scott-Rodino Antitrust Improvements Act; advocating for clients in Second Request investigations by the DOJ and FTC; directing strategy in merger reviews by foreign competition authorities; advising on remedy proposals and negotiations; representing interested third parties and divestiture buyers; and providing guidance on diligence, integration planning, and other pre-closing matters.
On July 19, 2023, the DOJ and the FTC released draft updates to their Merger Guidelines for horizontal and vertical mergers that reflect a considerable shift in how the DOJ and FTC review mergers. The Merger Guidelines outline the framework the agencies apply when evaluating the competitive impact of mergers and acquisitions. Although not legally binding, these guidelines are a critical component in the merger enforcement process. Antitrust practitioners refer to them when advising clients and courts regularly cite them in their opinions in merger enforcement cases.
The sweeping changes proposed in the updated Guidelines represent shifts in philosophy in how the DOJ and FTC analyze and review mergers. If adopted, merger review using the Guidelines would assess more mergers as presumptively unlawful under lower concentration thresholds, lead to more frequent thorough investigations of transactions, and add time for regulatory review before those transactions can close.
The agencies set forth 13 points or "guidelines" that will be used in determining whether they consider a transaction potentially anticompetitive. The first eight guidelines outline ways by which a transaction may lessen competition; for example, if the transaction significantly increases concentration in a market that is already highly concentrated. The next four clarify how the agencies will approach certain types of transactions or issues in a transaction. The final guideline is a catchall clarifying that the first 12 guidelines do not lay out every way in which a transaction may substantially lessen competition.
Listen as our authoritative panel of antitrust experts discusses the draft updates to the Merger Guidelines and how these changes reflect the current FTC and DOJ enforcement priorities already in place. The panel will also provide tips on how to advise clients now to anticipate an increased likelihood of additional regulatory scrutiny for future M&A activity.
- Role of Merger Guidelines
- Tool/framework for agencies and public
- Previously have been considered as persuasive to courts, but are not law
- Comparison of current Guidelines with new draft Guidelines
- Overview of the new draft Merger Guidelines
- The 13 separate guidelines agencies will apply to determine the competitive effects of a merger
- Evidence considered/standards
- Approach to market definition
- Defenses (e.g., efficiencies, failing firm defense)
- How current Guidelines compare to recent case law (Meta/Within, United/Change, and Microsoft/Activision)
- Key takeaways and practical considerations
- Changing Guidelines and their impact on courts' views and decisions
- Future of the new Guidelines if a new administration takes office in 2025
The panel will review these and other key issues:
- What is the reasoning behind the proposed changes to the Merger Guidelines?
- What are the 13 separate guidelines that will be used in determining whether a transaction is potentially anticompetitive?
- How do the proposed changes to the Merger Guidelines reflect the government's enforcement priorities?
- How should practitioners advise clients considering future M&A activity in light of these proposed new Guidelines?
