The world is living through the most dynamic period in antitrust and competition policy for decades – with pressure for change coming from different directions and likely to generate concrete proposals and political controversy in 2020, plus the global COVID-19 pandemic adding unprecedented complexity and uncertainty. In this context, this article highlights a number of significant trends and developments of which businesses should be aware.
The Department of Justice Antitrust Division and the Federal Trade Commission have announced the release of the 2020 Draft Vertical Merger Guidelines (VMG) for a 30-day comment period. As with any guidelines issued by the agencies, the finalised VMG will be instructive for the agencies' review of vertical mergers and will be persuasive but not binding on the courts should a contested merger enter litigation.
California's governor recently signed a bill designed to enhance antitrust scrutiny of patent settlements between branded and generic pharmaceutical companies. The bill follows the California attorney general's nearly $70 million settlement in Summer 2019 with several pharmaceutical companies based on patent settlements that the attorney general claimed violated the Cartwright Act and is yet another example of diverging interpretations between federal and state antitrust laws.
In a historic shift, the Department of Justice's Antitrust Division will now consider providing credit to companies in the charging and sentencing stages of an antitrust criminal investigation if they have a robust and effective antitrust compliance programme. While a positive step, significant questions remain regarding the extent to which the opportunity for compliance credit will incentivise companies to self-report criminal antitrust violations and how the guidance interacts with the division's leniency programme.
The US Federal Bureau of Investigation (FBI) and the Australian Competition and Consumer Commission (ACCC) recently signed a new memorandum of cooperation to strengthen their ability to combat cartels and other anti-competitive conduct. According to the section chief of the FBI's Criminal Investigative Division, the memorandum codifies the FBI's relationship with the ACCC and provides an opportunity for increased information and resource sharing.
Litigants often enter into settlement agreements without giving much thought to whether those agreements could form the basis for an antitrust claim – and for good reason because most settlement agreements simply resolve a dispute through money payments. However, agreements that restrict rivals' abilities to engage in advertising or other competitive activities could fall foul of the antitrust laws.