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 Guidelines
The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2022”.
In the 2021 edition of this memo, we wrote that antitrust in 2020 received more political and media attention than at any recent time. 2021 beat that standard in multiple ways, and 2022 looks to continue that trend. In addition to continuing the major tech cases brought under the Trump administration, 2021 saw unprecedented levels of legislative activity in antitrust (both federal and state), competition policy taking a leading position across federal agencies and startling new approaches at the Federal Trade Commission (FTC) in particular – new approaches that, while they haven’t yet produced a wave of new enforcement actions, have required changes in thinking about and approaching antitrust issues. We expect these trends to accelerate in 2022. Continue Reading U.S. & EU Antitrust: Developments and Outlook in 2022
On 13 May 2021, the Court of Appeal dismissed an appeal by Facebook, Inc and Facebook UK Limited against a CAT ruling that the CMA had not erred in refusing to grant derogations from an initial enforcement order (IEO) made in relation to the completed acquisition of Facebook of GIPHY. Inc. See main article above.
On May 3, 2021, the European Commission fined life science company Sigma-Aldrich € 7.5 million for providing incorrect or misleading information during the Commission’s 2015 review of Merck’s acquisition of the company. The fine marks another step in an increasingly stringent approach to enforcing the procedural rules that apply during the Commission’s merger control process. Continue Reading The Commission Fines Sigma-aldrich €7.5 Million for Providing Incorrect Information During Merger Review
On October 5, 2020, the General Court dismissed an action for annulment by HeidelbergCement and Schwenk Zement (the “parent companies”) against the Commission’s April 2017 decision, which prohibited their acquisition of Cemex’s Croatian and Hungarian subsidiaries through Duna-Dráva Cement (“DDC”), a full-function JV (“JV”) equally owned and controlled by the parent companies.  Continue Reading HeidelbergCement & Schwenk Zement v. Commission: The General Court Provides Jurisdictional Clarity Where a Joint Venture Acts as the Acquirer
On 21 April 2020, the CAT dismissed Ecolab’s appeal against the CMA’s decision of 8 October 2019 that (i) Ecolab’s completed acquisition of the Holchem Group resulted in a SLC in the supply of formulated cleaning chemicals, and (ii) the most effective and proportionate remedy was for Ecolab to divest the overlapping Holchem business to an approved purchaser. Continue Reading Ecolab Inc. v Competition and Markets Authority
On 1 October 2019, the CMA announced that it had referred JD Sports’ completed acquisition of Footasylum for an in-depth Phase 2 investigation. The parties sell sports-inspired casual clothing and footwear. This follows the CMA’s announcement on 19 September 2019 that the transaction could remove one of JD Sports’ closest competitors. It considered the parties to be two of a small number of companies active in the UK that have the brand relations and market presence to be able to credibly meet the demands of sports fashion customers. The statutory deadline is 16 March 2019.
Following a public consultation launched in July 2019, the Commission adopted a guidance document on the protection of confidential information in proceedings for the private enforcement of EU competition law based on the Antitrust Damages Directive (“ADD”). The Confidentiality Guidance is intended for use by national courts to ensure consistency across Member States regarding access to and the protection of confidential information disclosed in private enforcement proceedings. The Communication is not binding and does not modify the rules applicable in different Member States, but rather outlines a number of measures and tools national courts may employ to help protect confidential information. Continue Reading Commission Approves The Acquisition Of Innogy By E.ON Subject To Commitments
On February 26, 2019, the FCO approved RWE AG’s (“RWE”) acquisition of a minority stake of 16.67% in E.ON SE (“E.ON”). The acquisition is part of a complex share and asset swap deal between the two energy companies. Following the share and asset swap, E.ON will focus on the distribution and retail of electricity and gas, whereas RWE will be primarily active in upstream electricity generation and wholesale markets. Continue Reading FCO Clears RWE’s Acquisition Of A Minority Stake In E.ON
On January 18, the CAT quashed the procedural timetable set by the CMA in the Phase 2 review of the Sainsbury’s/Asda merger. The CMA had given the parties a little over two weeks to respond to over 400 pages of working papers and scheduled the Main Party Hearings during the same period. The CAT found the deadlines were unreasonable and unfair given the volume and complexity of the papers, the CMA’s failure to engage in a longer pre-notification period despite the parties’ requests, and the overlap of the deadlines for the main hearing and response to the working papers. The CAT did not specify new deadlines, which were left to the CMA’s discretion, having regard to the overall statutory review period. Continue Reading J Sainbury PLC and ASDA Group Limited vs. CMA