Antitrust Insights and Analysis

Common Ownership in the Draft Merger Guidelines: A Sea Change for Index Funds?

By Wyatt Fore   [Draft] Guideline 12: Acquisitions of partial control or common ownership may in some situations substantially lessen competition.[1]   Portfolio investors may soon find that their investments could be the subject of increased antitrust scrutiny, resulting from new federal enforcement guidelines.   On July 19, 2023, the U.S. Department of Justice and the Federal Trade Commission...

Department of Justice Signals More Aggressive Healthcare Competition Enforcement With Withdrawal of Three Policy Statements

By Sarah Bayer and James J. Kovacs Last week the Antitrust Division of the U.S. Department of Justice signaled a more aggressive approach in promoting healthcare competition with its announcement that it is withdrawing three policy statements concerning competition in healthcare markets. The rescinded statements, released in 1993, 1996, and 2011, provided an enforcement rubric and offered various “safety...

U.S. Adoption of a Central Bank Digital Currency Could Revitalize Payments Markets With Competition

The ailing U.S. payments markets could get a shot of much-needed competition if the U.S. government follows through on proposals to adopt a Central Bank Digital Currency (“CBDC”)—which would be issued by the Federal Reserve. The competitive failings of U.S. payments markets were highlighted a few weeks ago at a Senate Judiciary Committee hearing on interchange or “swipe fees,” the fees that merchants pay...

Microsoft’s Proposed Acquisition of Activision Blizzard Could Be A Game Changer for Antitrust Challenges of Digital Market Mergers

Federal antitrust enforcers may be on the verge of rewriting the code for challenges to mergers in digital markets as they decide whether to challenge Microsoft’s bid to acquire Activision Blizzard. Microsoft’s recent announcement that it intends to acquire video-game publisher Activision for $75 billion sent shockwaves across the video-game industry and generated plenty of headlines.  This is the latest...

Antitrust Enforcers Are Continuing to Plow the Fields of Agriculture

The Biden administration is carrying through on its commitment—which we previously  analyzed in Antitrust Today—to beef up antitrust enforcement in the agriculture industry in an attempt to increase competition and address rising food prices. While some are debating whether increased antitrust enforcement will help reduce prices, activity by the Department of Agriculture (“USDA”) and the Department of...

Merger Enforcement is Picking Up as DOJ and FTC Solicit Comments on Updating Merger Review Guidelines – Start Sharpening Your Pencils.

Anyone interested in the current antitrust revival will have an opportunity to voice his or her views as to how to improve antitrust enforcement aimed at anticompetitive mergers. Even non-attorneys are likely to have noticed the increased focus on antitrust enforcement in the United States targeting mergers through government reviews and litigated challenges.  From books to  computing technology, from beer to

FTC’s Antitrust Suit Against Facebook Survives Motion to Dismiss

On January 11, 2022, the U.S. District Court Judge James Boasberg denied Facebook’s motion to dismiss the FTC’s Amended Complaint which alleges that Facebook maintained a monopoly in personal social service network market in violation of Section 2 of the Sherman Act. While the FTC won this particular battle, it will now need to prove its allegations through expert testimony and statistical analysis. Judge...

Elite Universities Face Price-Fixing Allegations

A potential class of more than 170,000 former students that received financial aid to attend 16 of the top universities in the United States may be entitled to hundreds of millions of dollars in damages, according to a complaint recently filed in the U.S. District Court for the Northern District of Illinois. The plaintiffs allege that these private, national universities, which rank in the top 25 of U.S. News &...

Will the Next Chapter in DOJ’s Showdown With Book Publishers Rewrite the Book on Antitrust Merger Enforcement?

Federal antitrust enforcers hope to write a new chapter on merger enforcement this year as they face off against leading publishers. One of the major antitrust developments last year was the United States Department of Justice’s (DOJ) challenge of the merger of Penguin Random House and Simon & Schuster, alleging that the large publishers’ combined monopsony power would harm competition in the publishing...

UPDATE: New York’s Groundbreaking Antitrust Bill Is Reported Out of Committee and Advances to the Senate Floor Calendar

New York took a step closer to launching an antitrust revival in the state today as the New York Senate Consumer Protection Committee voted to send S933A—a groundbreaking antitrust bill that would fundamentally reshape antitrust law and enforcement in the Empire State—to the full Senate floor calendar. As this blog previously reported, although New York’s Twenty-First Century Antitrust Act passed the Senate...