On September 29, 2022, the U.S. House of Representatives passed a package of three antitrust bills (H.R. 3843) by a vote of 242-184. The package includes: (1) the Merger Filing Fee Modernization Act; (2) the Foreign Merger Subsidy Disclosure Act; and (3) the State Antitrust Enforcement Venue Act.

The Merger Filing Fee Modernization Act updates the structure and amounts of premerger filing fees that the Federal Trade Commission (“FTC”) and Department of Justice (“DOJ”) collect pursuant to the Hart-Scott Rodino Antitrust Improvement Act of 1976. The Merger Filing Fee Modernization Act reduces fees for smaller transactions, increases fees for mergers valued at $1 billion or greater, and adjusts the filing fee amounts for each future year based on changes in the Consumer Price Index. Finally, the bill requires the FTC and DOJ to report each year on the total revenue generated from premerger notification filing fees, broken out by tier, and the FTC must also include in the report a list of all actions the agency took or declined to take based on a 3-to-2 vote.

The Foreign Merger Subsidy Disclosure Act requires parties submitting premerger notifications to disclose detailed information on subsidies from a “foreign entity of concern.” A foreign entity of concern is defined under 42 U.S.C. § 18741(a) and includes those designated foreign terrorist organizations, on the Specially Designated and Blocked Persons List, and alleged to be involved in espionage or unauthorized conduct detrimental to the national security or foreign policy of the United States. The definition further covers entities owned by, controlled by, or subject to the direction of the governments of the Democratic People’s Republic of North Korea, the People’s Republic of China, the Russian Federation, or the Islamic Republic of Iran.

The State Antitrust Enforcement Venue Act allows State Attorneys General to bring antitrust actions in their own jurisdictions, exempting them from multidistrict litigation processes provided under 28 U.S.C. § 1407. Currently, civil actions with common questions of fact that are pending in different jurisdictions may be transferred to a single jurisdiction “for coordinated or consolidated” proceedings. The statute contains an exemption for cases brought by the United States arising under antitrust laws, and the legislation expands that exemption to individual states.

This legislative package now moves to the Senate, where it is unclear when and how that chamber will act on the bill. The Senate is currently in recess so that members can campaign for November’s midterm elections. This leaves a small, but sufficient, window for the Senate to take action on the legislation once it returns.

If you have any questions concerning the material discussed in this client alert, please contact the following members of our Antitrust practice:

This information is not intended as legal advice. Readers should seek specific legal advice before acting with regard to the subjects mentioned herein.

Covington & Burling LLP, an international law firm, provides corporate, litigation and regulatory expertise to enable clients to achieve their goals. This communication is intended to bring relevant developments to our clients and other interested colleagues. Please send an email to unsubscribe@cov.com if you do not wish to receive future emails or electronic alerts. 

Tags: Foreign Merger Subsidy Disclosure Act, Merger Filing Fee Modernization Act, State Antitrust Enforcement Venue Act, US competition law
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Photo of Nicholas Xenakis Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (C-DA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).

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Photo of Ryan Quillian Ryan Quillian

Ryan Quillian, former Deputy Assistant Director of the Technology Enforcement Division at the U.S. Federal Trade Commission (FTC), advises clients on the full range of civil antitrust issues, including conduct and merger investigations, civil litigation, and counseling and compliance.

Ryan joined Covington after…

Ryan Quillian, former Deputy Assistant Director of the Technology Enforcement Division at the U.S. Federal Trade Commission (FTC), advises clients on the full range of civil antitrust issues, including conduct and merger investigations, civil litigation, and counseling and compliance.

Ryan joined Covington after eight years of public service with the FTC, where he worked on antitrust investigations in a variety of industries, including technology, pharmaceutical and life sciences, retail, distribution, consumer goods, and healthcare. In addition to his investigation experience, Ryan also developed strong relationships with staff throughout the agency, routinely interacted with agency leadership, communicated directly with foreign competition agencies, and provided technical assistance on proposed legislation.

As a manager of the FTC’s Technology Enforcement Division, Ryan supervised complex investigations into potentially anticompetitive mergers and conduct involving technology companies. Prior to joining the Technology Enforcement Division, Ryan served as Counsel to the Director of the Bureau of Competition, Attorney Advisor to Commissioner Noah Joshua Phillips, Acting Deputy Assistant Director of the Mergers IV Division, and a staff attorney in the Mergers IV Division.

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