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Antitrust Enforcement in 2023: Vertical Mergers, Interlocking Directorates, Unfair Competition, Information Sharing

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Thursday, April 20, 2023

Recorded event now available

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This CLE webinar will provide an analysis of key changes in antitrust theory and enforcement by DOJ's Antitrust Division and the FTC during the first two years of the Biden administration. The panel discussion will include increased scrutiny of vertical mergers, interlocking directorates, information sharing, and the expanded view of what constitutes anticompetitive behavior.

Description

The Biden administration has generally advocated for a broader interpretation of what constitutes anticompetitive behavior. Antitrust agencies have signaled a more aggressive posture towards many mergers and a willingness to litigate more merger challenges than in the past.

While the agencies have historically viewed vertical transactions as likely to pose fewer competition concerns, recent developments have called that approach into question. Enforcers also continue to challenge mergers involving supposed nascent competitors, particularly in the technology sector.

Recent scrutiny of interlocking directorates by the DOJ and the FTC indicates that antitrust authorities may escalate enforcement of Section 8 of the Clayton Act. This new focus is notable for private equity funds that might have directors on the boards of portfolio companies who could be viewed as competitors.

In November 2022, the FTC released a new policy statement regarding Section 5 of the FTC Act, which prohibits unfair methods of competition in or affecting commerce. Under the new policy statement, the FTC plans to "focus on stopping unfair methods of competition in their incipiency based on their tendency to harm competitive conditions."

On Feb. 2, 2023, DOJ announced that the Antitrust Division plans to withdraw policies, originally issued in 1993, that established "antitrust safety zones " for certain conduct and have not yet provided any new guidance. The withdrawal introduces some uncertainty regarding practices that were regarded as low risk under the previous guidance and could lead to increased litigation and enforcement actions.

Listen as our authoritative panel examines these and other developments in antitrust enforcement, and the implications for corporate transactions and conduct going forward.

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Outline

  1. Fundamental changes in antitrust philosophy and enforcement under the Biden Administration
  2. No poach agreements
  3. Horizontal and Vertical Mergers and what to expect in the new DOJ-FTC merger guidelines
  4. Revisiting the "safe harbor" for information sharing in light of the DOJ's withdrawal of safe harbor guidance documents
  5. Redefining what constitutes unfair competition in light of the FTC's new Section 5 Unfair Methods of Competition Policy Statement
  6. The FTC's new proposed rule creating per se liability for employment non-compete provisions

Benefits

The panel will review these and other important issues:

  • How has the current administration's approach to antitrust affected its review of vertical mergers?
  • What recent actions by the DOJ and the FTC indicate increased scrutiny of interlocking directorates?
  • What are the likely effects of the Antitrust Division's withdrawal of previous policy statements regarding healthcare antitrust policies?
  • What are the ramifications of the FTC's recent policy statement regarding unfair competition?

Faculty

Gilman, Alexis
Alexis J. Gilman
Partner
Crowell & Moring

Mr. Gilman advises and represents clients on a broad range of civil antitrust and competition matters, including merger...  |  Read More

Lee, Kenina
Kenina J. Lee
Counsel
Axinn Veltrop & Harkrider

Ms. Lee litigates major class action and multi-district antitrust cases in federal courts throughout the United States....  |  Read More

Lynch, Christopher
Christopher Lynch
Counsel
Davis Polk & Wardwell

Mr. Lynch helps clients formulate their antitrust clearance strategies for their most complex transactions. He also...  |  Read More

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