The Digital Markets, Competition and Consumers (“DMCC”) Act received Royal Assent on 24 May 2024 (the final text is now available here). The DMCC Act will only enter into force, however, when secondary commencement legislation has been enacted (with some minor exceptions). This is expected to occur in Autumn 2024, but it
Continue Reading Overview of the UK’s New Digital Markets RegimeFCO gives green light for ‘greener’ plant trays
In line with its previous decision-making practice (see our previous sustainability blog posts here and here), on 8 May 2024, the German Federal Cartel Office (“FCO”) declared the implementation of a new European industry standard for reusable pot plant trays compatible with competition law.
Since 2021, companies and associations from the European
Continue Reading FCO gives green light for ‘greener’ plant traysNew HSR Rules Will Be Finalized Within Weeks, According to DOJ Official
Last summer, the antitrust agencies proposed sweeping changes to the Hart-Scott-Rodino (“HSR”) Act premerger notification form and associated rules. Covered in detail here, the proposed changes would significantly increase the time, burden, and costs on merging parties to prepare an HSR filing. The public comment period ended on September 27, 2023. Since then, the agencies have given little indication what changes would be made in response to the comments or when the proposed rules would be finalized.Continue Reading New HSR Rules Will Be Finalized Within Weeks, According to DOJ Official
Recently Published FTC Data Confirm Historically Low Number of Merger Enforcement Actions
On November 3, 2023, FTC Chair Lina Khan sent a letter addressed to Representative Thomas P. Tiffany describing the FTC’s merger enforcement program during her tenure at the agency. The letter was a response to an inquiry from seven members of congress for information about the costs associated with certain litigated merger challenges brought by
Continue Reading Recently Published FTC Data Confirm Historically Low Number of Merger Enforcement ActionsGAO Recommends Increased Guidance for DOD Mergers & Acquisitions Review
On October 17, 2023, the U.S. Government Accountability Office (“GAO”) published a report on mergers and acquisitions (“M&A”) in the defense industrial base. The report details the current M&A review process of the Department of Defense (“DOD”) and provides recommendations to proactively assess M&A competition risks.
Currently, DOD’s Industrial Base Policy (“IBP”) office, with input
Continue Reading GAO Recommends Increased Guidance for DOD Mergers & Acquisitions ReviewBiden Antitrust Agencies Bring Fewer Merger Enforcement Actions, but Attempt to Chill Deal Activity in Other Ways
A glance at headlines regarding competition law could easily give the impression that U.S. antitrust agencies have embarked on a record number of merger challenges in recent years. But the numbers tell a different story: in the first two years of the current Administration, the rate of merger-related federal enforcement actions has actually decreased. While
Continue Reading Biden Antitrust Agencies Bring Fewer Merger Enforcement Actions, but Attempt to Chill Deal Activity in Other WaysFTC Proposes Rule to Ban Most Non-Competes
On January 5, 2023, the Federal Trade Commission (“FTC”) issued a groundbreaking proposed rule that would, if finalized:
- prohibit most employers from entering into non-compete clauses with workers, including employees and individual independent contractors;
- prohibit such employers from maintaining non-compete clauses with workers or representing to a worker that the worker is subject to a non-compete clause; and
- require employers to rescind any existing non-compete clause with workers by the compliance date of the rule and notify the affected workers that their non-compete clause is no longer in effect.
The FTC’s notice of proposed rulemaking explains that the FTC considered possible limitations on the rule—such as excluding senior executives or highly paid employees from the ban—but it ultimately proposed a categorical ban on non-competes. The only exception is for non-competes related to the sale of a business. However, even this exception is unusually narrow: it would only apply to selling business owners who own at least 25% percent of the business being sold. (The proposal also would not apply to most non-profits, certain financial institutions, common carriers, and others who are also outside the scope of FTC regulation.)
As discussed in Covington’s January 5 client alert, the FTC explained that it issued the proposed rule due to its belief that non-competes reduce wages, stifle innovation and business, and are exploitative and unnecessary. Continue Reading FTC Proposes Rule to Ban Most Non-Competes
U.S. House of Representatives Passes Antitrust Legislative Package
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.Continue Reading U.S. House of Representatives Passes Antitrust Legislative Package
Significant Changes to China’s Anti-Monopoly Law to Take Effect in August
When its Anti-Monopoly Law (“AML”) went into effect in August 2008, China immediately became a significant antitrust enforcer on the world stage. On June 24, 2022, the National People’s Congress, China’s top legislature, passed the Amendment to the Anti-Monopoly Law of the PRC (the “Amendment”), the first significant changes to the AML in nearly fourteen years. The Amendment, which was signed into law by President Xi Jinping and published on June 24, will become effective on August 1. It marks a major milestone in antitrust enforcement in China.
The more significant aspects of the Amendment include:
- significantly enhanced penalties for AML violations, including the introduction of fines for individuals;
- the introduction of a discretionary “stop-the-clock” mechanism for merger reviews;
- the codification of a burden-shifting framework created by China’s courts that gives companies the opportunity to defend resale price maintenance agreements; and
- new safe harbor and burden of proof provisions for matters involving vertical agreements.
Consistent with trends in other jurisdictions around the world, the Amendment also features a special focus on key economic sectors such as the digital economy.
Following the publication of the Amendment, the State Administration for Market Regulation (“SAMR”), China’s lead antitrust enforcement authority, released six sets of draft implementing regulations for public comment. These cover subjects such as merger control and notification thresholds, anti-competitive agreements, abuse of a dominant market position, and the abuse of intellectual property rights to exclude or restrict competition. SAMR is accepting comments on these regulations until July 27, 2022.
How Covington Can Help
Covington’s global antitrust and competition practice guides clients through the often-complex web of antitrust and competition laws around the world to help them secure their most important business objectives. Our team, which includes many attorneys who have served in senior leadership roles at government enforcement agencies and in in-house positions, has decades of collective experience advising clients regarding their global antitrust and competition concerns. If you have any questions concerning the material discussed in this client alert, please contact any of the following members of our Antitrust/Competition practice: Jim O’Connell, James Marshall, and Alexander Wang.
This communication is intended to bring relevant developments to the attention of Covington & Burling LLP’s clients and other interested colleagues. It is not intended as legal advice. Readers should seek specific legal advice before acting with regard to the subjects mentioned herein. Please send an email to unsubscribe@cov.com if you do not wish to receive future emails or electronic alerts.Continue Reading Significant Changes to China’s Anti-Monopoly Law to Take Effect in August
European Court of Justice clarifies scope of protection against double jeopardy in successive antitrust investigations
On 22 March 2022, the European Court of Justice (“ECJ”) issued two separate preliminary rulings – Bpost and Nordzucker – which clarify how the protection against double jeopardy (“non bis in idem principle”) should be applied in instances where an identical competition law infringement is sanctioned in parallel investigations, either by different regulatory authorities of the same EU Member State or by multiple national competition authorities (“NCAs”) from different EU Member States.
The key takeaways from the two judgments are as follows:
- the non bis in idem principle applies to competition law due to the criminal aspect embedded in the relevant administrative penalties;
- the non bis in idem principle only applies if the facts are identical – a mere reference to a fact in a decision is not sufficient to demonstrate that an authority has ruled on that element;
- different national authorities can impose fines for an identical infringement if the legislation on which they rely pursues complementary objectives;
- the non bis in idem principle also applies to situations where an NCA has granted leniency to a company such that only a declaratory finding infringement (without fine) can be made.