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 February 21, 2020, the Commission fined hotel group Meliá €6.7 million for restricting cross-border sales through the terms of its hotel accommodation agreements with tour operators.[1] These terms allegedly forced tour operators to discriminate between EEA customers based on their country of residence. The Meliá decision is noteworthy for two reasons. It reiterates the Commission’s strict stance on any measures partitioning the EU Single Market, a theory of harm the Commission has applied frequently in recent years. It also continues the Commission’s now frequent practice of rewarding cooperation in non-cartel cases. Continue Reading The Commission Fines Meliá €6.7 Million for Restricting Cross-border Sales
On June 11, 2019, Nustay, a Danish online booking agency, filed a complaint with the Commission against Expedia and Booking.com, alleging a breach of Articles 101 and 102 TFEU. The complaint centers on parity clauses in online hotel booking. In 2015, both Expedia and Booking.com agreed with the Danish Competition Authority to remove wide price-parity clauses from their contracts with hotels.[1] Nustay alleges that these two companies have de facto re-introduced these clauses through certain commercial practices. Continue Reading Complaint Against booking.com and Expedia Brings Hotel Parity Clauses to the Commission’s Docket
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 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