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The new draft guidelines depart from decades of practice by introducing novel presumptions that could make it harder for mergers to obtain regulatory clearance from the agencies.

On July 19, 2023, the FTC and DOJ published draft merger guidelines.[1]  Historically, the purpose of these guidelines has been to provide the public, including companies whose transactions are potentially subject to agency review, with information about how the agencies analyze mergers to identify potential competitive harm.  The guidelines have no force of law and are not binding on the courts, though courts have relied on them as persuasive authority to varying degrees.  Past iterations of the guidelines have therefore provided a neutral explanation of the agencies’ approach, including descriptions of the economic tools that they and the courts can use to assess a merger’s likely competitive effects.

Changes Would Multiply Time, Burden, and Expense for All Filings, Even for Transactions With No Competition Concerns

The U.S. FTC and DOJ have proposed sweeping changes to the pre-merger process in the United States under the Hart-Scott-Rodino (HSR) Act.[1] 

The changes would not affect whether a transaction is subject to the reporting requirements.  But for those transactions where an HSR filing is required, the changes would, in a word, be massive.

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. …

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.

The recent Consolidated Appropriations Act of 2023 includes significant changes to the filing fees for Hart Scott Rodino Act filings.

In the third episode of a three-part series on U.S. antitrust enforcement, host Nick Levy interviews Cleary Gottlieb colleagues Bruce Hoffman and Leah Brannon about the U.S. enforcement environment for Big Tech, the agencies’ application of Section 2 of the Sherman Act, and the prospects for legislative change.

In the second episode of a three-part series on U.S. antitrust enforcement, host Nick Levy interviews Cleary Gottlieb colleagues Dave Gelfand and Heather Nyongo’o about U.S. antitrust and merger litigation, the prospects for legislative change in the U.S., and their practical experiences of handling major litigation at the Department of Justice’s Antitrust Division and in private practice.