USA, Norton Rose Fulbright US LLP updates

Competition & Antitrust

Contributed by Norton Rose Fulbright US LLP
Understanding FTC's monetary equitable remedies under Section 13(b) for antitrust violations
  • USA
  • 13 February 2020

Until recently, the Federal Trade Commission's (FTC's) ability to seek monetary equitable remedies (particularly disgorgement and restitution) for alleged antitrust violations went virtually unchallenged. However, the most recent appellate case that interprets the FTC's monetary equitable remedies under Section 13(b) of the FTC Act leaves open many questions about the FTC's ability to seek monetary equitable remedies in antitrust cases pursuant to Section 13(b).

FTC and DOJ release 2020 Draft Vertical Merger Guidelines for public comment
  • USA
  • 30 January 2020

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 legislature passes bill enhancing antitrust scrutiny of patent settlements
  • USA
  • 31 October 2019

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.

Hart-Scott-Rodino annual report confirms likelihood of challenge for transactions subject to second requests
  • USA
  • 10 October 2019

The Federal Trade Commission and the Department of Justice's Antitrust Division recently released the Hart-Scott-Rodino Annual Report for Fiscal Year 2018, covering 1 October 2017 to 30 September 2018. This report is the first opportunity to review data regarding the merger challenges issued exclusively during Trump's administration. The data underscores the importance and benefit of advance planning and strategy to avoid a second request investigation whenever possible.

Enhancing the 'carrot': DOJ announces changes to its compliance programme policy
  • USA
  • 01 August 2019

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.


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