A recent influx of proposed federal and state legislation seeks to strengthen and modernise the antitrust laws and expand antitrust enforcement. The political momentum behind these attempts reflects noisy bipartisan support for legislators to do something about the ever-growing economic power and political influence of Google, Facebook, Amazon and other so-called 'tech giants'. However, the proposed legislative 'solutions' may go well beyond the original causes of political concern.
For the first time, a private party has successfully challenged an acquisition and obtained an order requiring a divestiture of a company that had been acquired years before the case was filed. In a highly anticipated decision, a court of appeals has affirmed that order. The decision serves as a stark reminder of the antitrust litigation risk that the acquiring party to a transaction faces, potentially even years after the transaction closes.
The Hart-Scott-Rodino Antitrust Improvements Act (as amended) is the pre-merger notification statute for the United States. The Federal Trade Commission (FTC) recently announced that the minimum threshold will be adjusted to $92 million for transactions consummated on or after 4 March 2021. Moreover, the FTC has announced that it is temporarily suspending the grant of early terminations to allow the agency to review "the processes and procedures used to grant early termination".
In December 2020 the Antitrust Division of the US Department of Justice (DOJ) indicted an individual employer owner, for the first time, for agreeing with a competing owner to reduce the wages that their workers were being paid. Moreover, on 5 January 2021 the DOJ indicted a corporation for conspiring with two competing employers to allocate a medical employment market by agreeing not to solicit each other's senior employees. These rapid-fire developments are of critical importance to all companies.