By: Steven J. Cernak (The Antitrust Attorney)
The Federal Trade Commission continues to take subtle steps that, in total, will end up significantly changing the merger review process under the Hart-Scott-Rodino Act. We have already covered some of the earlier actions: withdrawal of the 2020 Vertical Merger Guidelines, withdrawal of one long-standing HSR rule interpretation and threats to the rest, and the routine issuance of threatening letters to parties closing after the end of HSR’s waiting period. This week, the FTC took another such step when it announced that it would now “routinely” require many parties involved in mergers to obtain prior approval from the FTC for many future transactions.
Before 1995, the FTC had often included a “prior approval” provision in any order settling its review of a merger that it had found to be anticompetitive. That provision required the parties to seek FTC approval for any future merger, usually for the next ten years though usually limited to the markets involved in the original merger. In 1995, the FTC issued a Policy Statement explaining that it would no longer routinely require such prior approval provisions and, instead, would simply rely on HSR’s requirement for most large mergers to be reported to the antitrust agencies prior to consummation. Earlier this year, the FTC rescinded that 1995 Policy Statement. This week, the FTC announced its replacement.
To understand the import of the new policy, you must understand how the HSR merger review process has worked in practice. The parties to most mergers and similar transactions above the threshold set by Congress (and automatically updated each year) must file certain forms and documents with both the FTC and the Department of Justice Antitrust Division before closing. The reviewing agency, say, the FTC, then has thirty days to investigate and determine if it will allow the transaction to proceed or seek more information through a “second request.”…
Featured News
Clifford Chance Expands Global Antitrust Team with New Partner
Dec 6, 2024 by
CPI
Spain’s Financial Regulator Awaits Antitrust Decision on BBVA’s Hostile Bid for Sabadell
Dec 5, 2024 by
CPI
RealPage Seeks Dismissal of DOJ Antitrust Suit, Citing Legal Flaws
Dec 5, 2024 by
CPI
EU Competition Chief Signals Potential Google Breakup Amid Big Tech Scrutiny
Dec 5, 2024 by
CPI
Turkey Closes Antitrust Probe into Meta’s Threads-Instagram Practices
Dec 5, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Moats & Entrenchment
Nov 29, 2024 by
CPI
Assessing the Potential for Antitrust Moats and Trenches in the Generative AI Industry
Nov 29, 2024 by
Allison Holt, Sushrut Jain & Ashley Zhou
How SEP Hold-up Can Lead to Entrenchment
Nov 29, 2024 by
Jay Jurata, Elena Kamenir & Christie Boyden
The Role of Moats in Unlocking Economic Growth
Nov 29, 2024 by
CPI
Overcoming Moats and Entrenchment: Disruptive Innovation in Generative AI May Be More Successful than Regulation
Nov 29, 2024 by
Simon Chisholm & Charlie Whitehead