On December 12, 2024, the U.S. Federal Trade Commission (FTC) authorized its staff to file a complaint against alcohol distributor Southern Glazer’s Wine and Spirits, LLC (“Southern Glazer’s”). The complaint alleges that the company engaged in price discrimination—charging higher prices to independent businesses and lower prices to large national and regional chains—in violation of Section 2(a) of the Robinson-Patman Act (“RPA”). The Commission voted 3-2 along party lines to file the lawsuit in federal district court, with the two Republican-appointed Commissioners—Commissioners Melissa Holyoak and Andrew Ferguson—issuing strongly worded dissenting statements (see here and here, respectively). Prior to this case, the federal antitrust agencies—the FTC and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”)—had not brought an enforcement action under the RPA in more than two decades.Continue Reading FTC Brings First Robinson-Patman Act Case in More Than Two Decades
New HSR Requirements Set to Become Effective on February 10, 2025
Significant changes to the U.S. merger notification regime under the Hart-Scott-Rodino (“HSR”) Act are currently anticipated to go into effect on February 10, 2025, based on an update to the Federal Register publication schedule.
The Federal Trade Commission (“FTC”) announced the Final Rule implementing the changes to the HSR notification form on October 10, 2024
Continue Reading New HSR Requirements Set to Become Effective on February 10, 2025Texas District Court Enjoins FTC’s Rule Banning Non-Compete Clauses
On July 3, 2024, Judge Ada Brown of the United States District Court for the Northern District of Texas granted the motions for a preliminary injunction—filed by Ryan LLC and several trade associations, including the U.S. Chamber of Commerce—to prevent the FTC’s rule banning non-compete clauses from going into effect, but the court’s order only
Continue Reading Texas District Court Enjoins FTC’s Rule Banning Non-Compete ClausesU.S. Antitrust Agencies Propose Major Changes to Merger Guidelines
On July 19, 2023, the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice (collectively, “the Agencies”) issued a new set of merger guidelines in draft form for public comment (the “Draft Guidelines”). The Draft Guidelines, if adopted, will replace the Horizontal Merger Guidelines issued in 2010 and the Vertical Merger Guidelines issued in 2020 (the latter of which the FTC withdrew in September 2021). The updates make significant changes to the guidelines, such as:
- Lowering the thresholds for when the Agencies are likely to presume that horizontal mergers are illegal;
- Including—for the first time—a presumption of illegality for certain vertical mergers;
- Adding guidelines focused on serial acquisitions and acquisitions of potential competitors;
- Introducing concepts related specifically to multi-sided “platforms”; and
- Explicitly addressing the effects of transactions on labor markets for the first time.
Continue Reading U.S. Antitrust Agencies Propose Major Changes to Merger Guidelines
FTC and DOJ Propose Sweeping Changes to the HSR Form
On June 27, 2023, the U.S. Federal Trade Commission (“FTC”), with the concurrence of the Antitrust Division of the Department of Justice (“DOJ”) (together, “the Agencies”), issued a Notice of Proposed Rulemaking (the “Notice”) that proposes extensive changes to the Hart-Scott-Rodino (“HSR”) Act premerger notification form and associated instructions, as well as to the rules implementing the Act. The proposed changes represent the most significant revisions to the requirements that HSR filing persons must satisfy in the nearly 50 years since the inception of the HSR notification process. Continue Reading FTC and DOJ Propose Sweeping Changes to the HSR Form
FTC, DOJ Announce Process to Revamp Merger Guidelines
Tuesday, January 18th, the Federal Trade Commission (“FTC”) and the U.S. Justice Department’s Antitrust Division (“DOJ”) launched a joint public inquiry regarding the agencies’ horizontal and vertical merger guidelines. As part of this inquiry, the agencies are soliciting public comment via a Request for Information (“RFI”) on a wide range of topics that could lead to significant changes in the merger guidelines and increased scrutiny of a broad array of transactions. The agencies’ inquiry will address numerous themes of the merger guidelines including those highlighted below.
Continue Reading FTC, DOJ Announce Process to Revamp Merger Guidelines
Federal and State Price-Gouging Enforcement in the Era of COVID-19
COVID-19 has had a profound effect on supply chains, creating shortages and, in some cases, raising prices of vital medical and consumer products. It is no surprise that consumers, businesses, and government authorities are sounding the alarm about potential price gouging and pursuing those who appear to be exploiting the current crisis. On March 23, President Trump signed Executive Order 13910 under the Defense Production Act, which, among other things, prohibits hoarding of designated materials for the purpose of price gouging. Various federal agencies have warned that they will vigorously prosecute related conduct. Many state authorities have triggered the operation of price gouging statutes or stated their intention to use other available enforcement tools.
The uncertainty surrounding these competing legal frameworks can present challenges for suppliers of in-demand products at all levels of the distribution chain. There is no uniform definition of the offense of price gouging, which generally refers to opportunistic pricing at above-market rates or dramatic increases of prices for products in critical need. The diverse set of applicable state and federal laws vary in their operation and scope. This alert identifies the key federal and state enforcement risks and provides practical guidance for suppliers and purchasers seeking to navigate these issues.
Continue Reading Federal and State Price-Gouging Enforcement in the Era of COVID-19