The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.
Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed.
Continue Reading 2023 Update: U.S. Antitrust Sets Sail into Uncharted Seas
On Tuesday, January 18th, FTC Chair Lina Khan and DOJ Antitrust Division Assistant Attorney General Jonathan Kanter held a joint press conference in which they announced ambitious plans to review and update the Merger Guidelines, targeting a release of new guidelines before the end of 2022.
Continue Reading U.S. DOJ and FTC Announce Plan to Revamp Merger GuidelinesOn March 26, 2021, the French Conseil constitutionnel ruled that Article L. 464-2(5), 2° of the French Commercial Code, under which the French Competition Authority (“FCA”) may impose a fine of up to 1% of an undertaking’s turnover for obstructing an investigation, was contrary to the French Constitution.[1] Continue Reading The Conseil Constitutionnel Holds That Article L. 464-2(5), 2° of the French Commercial Code Is Contrary to the Constitution
On 2 September 2020, the US Department of Justice Antitrust Division (DoJ), the US Federal Trade Commission, the UK Competition and Markets Authority (CMA), the Australian Competition and Consumer Commission, the New Zealand Competition Commission, and the Canadian Competition Bureau signed a framework agreement to improve cooperation in competition investigations. Continue Reading CMA Signs ‘Five Eyes’ Cooperation Framework With U.S., Canadian, Australian, and New Zealand Competition Authorities
On December 11, 2018, the German Federal Court of Justice (“FCJ”) held that, at least in relation to quota fixing and customer allocation cartels, plaintiffs could no longer rely on prima facie evidence to establish that a cartel infringement led to causal damage.[1] The FCJ accepted, however, a factual presumption (tatsächliche Vermutung)— softer compared to prima facie evidence—that cartels would lead to an overcharge, and held that such a presumption was of “high indicative significance”. Since then, lower courts have rendered a number of judgments and struggled with applying the new evidentiary standard in practice. Continue Reading Recent Jurisprudence on Prima Facie Evidence vs. Factual Presumption in Cartels Follow-on Damages Actions
On January 29, the Court of Appeal held that the English courts lacked jurisdiction to find a standalone infringement in respect of an alleged cartel concerning air cargo services between the EU and third countries before Regulation 1/2003 came into force. Prior to Regulation 1/2003, only the Commission and national competition authorities (NCAs) could find an infringement of Article 101 TFEU in respect of such services. Absent a prior finding by the Commission or an NCA, therefore, national courts had no jurisdiction to award damages for the period before Regulation 1/2003 entered into force in relation to an alleged infringement involving such services.
In 2021, the Commission announced that it would revisit 15-25 merger decisions adopted between 2012 and 2018 to evaluate whether its predictions during the merger control process regarding entry, expansion and imports materialized ex post, with the assistance of an external contractor.[1] In February 2023, the Commission issued a request for information in the context of this study, seeking information about the effects of the acquisition by Aegean Airlines of Olympic Air—one of the rare cases in which the regulator accepted the “failing firm” defense.[2] It has been reported that the Commission has also sent questionnaires regarding Orange/Jazztel,[3] Ryanair/Aer Lingus,[4] Ineos/Solvay.[5] The final report is scheduled for publication later this year.[6]
Continue Reading The Commission Looks Back at <em>Aegean Airlines/Olympic Air</em>
On August 30, 2022, the Federal Cartel Office (“FCO”) published its Annual Report 2021/2022.[1] Andreas Mundt, the President of the FCO, pointed out two areas of the FCO’s focus: First, the collusion of undertakings under the guise of inflation and Russia’s war against Ukraine. Second, to use the flexibility of antitrust law to allow for a degree of cooperation that is necessary in times of crisis. Moreover, the FCO continues to pursue its digital agenda for the digital economy and the protection of consumer rights.
Continue Reading FCO’s Annual Report 2021/2022: The Digital Economy And Antitrust Enforcement In Times of Crisis
On January 5, 2023, the U.S. Federal Trade Commission (“FTC”)proposed a rule that would prohibit employers from entering into non-compete agreements (“non-competes”) with workers and require them to rescind all existing non-competes by written notice.
Continue Reading FTC Proposes Rule to Ban Non-Competes
The recent Consolidated Appropriations Act of 2023 includes significant changes to the filing fees for Hart Scott Rodino Act filings.
Continue Reading HSR Filing Fee Changes Impose New Tax on M&A Activity