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With a growing chorus of support across the progressive landscape, the For the People Act of 2021 has emerged as a key legislative priority for congressional Democrats in the 117th Congress.  Envisioned as a “transformational anti-corruption and clean elections reform package,” the bill would enact sweeping changes to federal election laws along with important changes

Changes Would Create New Exemption for Minority Acquisitions and Increase Filing Obligations for Certain Entities

Agencies Also Seek Public Comments that Could Lead to Additional Changes to the HSR Rules

The Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) (the “Agencies”) announced proposed changes to the premerger notification rules

  • Today’s US update:
    • The FTC’s Director of the Bureau of Competition published a blog post on the failing firm defense. Skip to relevant section.
  • Today’s EU updates:

************

United States

1. Mergers / Filings

  • Early Termination Resumes:  On Friday 27 March, the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) announced that they will resume processing requests for early termination of the 30-day waiting period under the Hart-Scott-Rodino (HSR) Act.  The agencies have cautioned that early termination will be granted in fewer cases, and more slowly, than under normal circumstances.  The announcement also emphasized that the agencies will continue to monitor circumstances, and may need to further modify the early termination policy.
  • Electronic HSR Filings: The FTC and DOJ are continuing to accept HSR merger filings through a temporary electronic filing system that was launched on March 17th.  Hard-copy filings will not be accepted during this period.
  • Extended Timing Agreements:  For mergers currently pending or that may be proposed, the DOJ is requesting, as part of any timing agreement, that merging parties afford it an additional 30 days to complete its review of transactions after the parties have complied with document requests.  (Although the DOJ has not stated it expressly, this likely means 30 days in addition to whatever period of time the parties have agreed to delay their closing beyond the 30-day post-compliance period already provided for by the HSR Act itself.  Thus, for example, if the parties have committed not to close for 60 days after compliance, the DOJ will request that they extend that commitment to 90 days.) The DOJ has cautioned that it may revisit its timing agreements with merging parties in light of further developments.
  • No In-Person Meetings & Depositions:  Meetings at both agencies will be conducted by phone or video conference (where possible).  The FTC has announced that Bureau of Competition meetings, including Front Office meetings, will be held remotely until further notice.  And, the DOJ has postponed all scheduled depositions, and they will be rescheduled using secure videoconferencing capabilities.
    Continue Reading COVID 19 – US and EU Competition Law Implications (29 May 2020)
On May 13, 2020, the Small Business Administration (“SBA”) released two FAQs, numbers 46 and 47, regarding two safe harbors from an SBA inquiry into a borrower’s statutorily required certification of economic necessity for a loan under the Paycheck Protection Program  (“PPP”).  FAQ 46 states that the SBA will deem any borrower that, together

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Wednesday 6 May 2020. Today’s new updates as compared to the previous update are highlighted – these are the headlines:
  • Today’s EU updates:

************

United States

1. Mergers / Filings

    • Early Termination Resumes:  On Friday 27 March, the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) announced that they will resume processing requests for early termination of the 30-day waiting period under the Hart-Scott-Rodino (HSR) Act.  The agencies have cautioned that early termination will be granted in fewer cases, and more slowly, than under normal circumstances.  The announcement also emphasized that the agencies will continue to monitor circumstances, and may need to further modify the early termination policy.
    • Electronic HSR Filings: The FTC and DOJ are continuing to accept HSR merger filings through a temporary electronic filing system that was launched on March 17th.  Hard-copy filings will not be accepted during this period.
    • Extended Timing Agreements:  For mergers currently pending or that may be proposed, the DOJ is requesting, as part of any timing agreement, that merging parties afford it an additional 30 days to complete its review of transactions after the parties have complied with document requests.  (Although the DOJ has not stated it expressly, this likely means 30 days in addition to whatever period of time the parties have agreed to delay their closing beyond the 30-day post-compliance period already provided for by the HSR Act itself.  Thus, for example, if the parties have committed not to close for 60 days after compliance, the DOJ will request that they extend that commitment to 90 days.) The DOJ has cautioned that it may revisit its timing agreements with merging parties in light of further developments.
    • No In-Person Meetings & Depositions:  Meetings at both agencies will be conducted by phone or video conference (where possible).  The FTC has announced that Bureau of Competition meetings, including Front Office meetings, will be held remotely until further notice.  And, the DOJ has postponed all scheduled depositions, and they will be rescheduled using secure videoconferencing capabilities.
    • DOJ Proposal to Extend Merger Timelines and Pause the Statute of Limitations for Price-Fixing Cases: According to a press report, the DOJ hopes to have included in the next round of pandemic legislation, a proposal that would let it and the FTC add 15 days onto merger timelines during emergencies, such as disease outbreaks, natural disasters, or government shutdowns.  The proposal also seeks to toll the statute of limitations for price-fixing and bid-rigging cases for at least six months because of the pandemic.
    • FTC Halts Merger Cases Amid COVID-19: The FTC has temporarily halted proceedings in three administrative antitrust merger challenges — Axon, Juul, and Arch Coal — until June, due to the public health emergency associated with COVID-19.


Continue Reading COVID 19 – US and EU Competition Law Implications (6 May 2020)

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Thursday 30 April 2020. Today’s new updates as compared to the previous update are highlighted – these are the headlines:
  • Today’s EU updates:
    • The Court has announced that it intends to resume hearings on 25 May 2020.
    • The Commission has cleared a further number of State aid requests by Member States.  Skip to relevant section.

************

United States

1. Mergers / Filings

    • Early Termination Resumes:  On Friday 27 March, the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) announced that they will resume processing requests for early termination of the 30-day waiting period under the Hart-Scott-Rodino (HSR) Act.  The agencies have cautioned that early termination will be granted in fewer cases, and more slowly, than under normal circumstances.  The announcement also emphasized that the agencies will continue to monitor circumstances, and may need to further modify the early termination policy.
    • Electronic HSR Filings: The FTC and DOJ are continuing to accept HSR merger filings through a temporary electronic filing system that was launched on March 17th.  Hard-copy filings will not be accepted during this period.
    • Extended Timing Agreements:  For mergers currently pending or that may be proposed, the DOJ is requesting, as part of any timing agreement, that merging parties afford it an additional 30 days to complete its review of transactions after the parties have complied with document requests.  (Although the DOJ has not stated it expressly, this likely means 30 days in addition to whatever period of time the parties have agreed to delay their closing beyond the 30-day post-compliance period already provided for by the HSR Act itself.  Thus, for example, if the parties have committed not to close for 60 days after compliance, the DOJ will request that they extend that commitment to 90 days.) The DOJ has cautioned that it may revisit its timing agreements with merging parties in light of further developments.
    • No In-Person Meetings & Depositions:  Meetings at both agencies will be conducted by phone or video conference (where possible).  The FTC has announced that Bureau of Competition meetings, including Front Office meetings, will be held remotely until further notice.  And, the DOJ has postponed all scheduled depositions, and they will be rescheduled using secure videoconferencing capabilities.
    • DOJ Proposal to Extend Merger Timelines and Pause the Statute of Limitations for Price-Fixing Cases: According to a press report, the DOJ hopes to have included in the next round of pandemic legislation, a proposal that would let it and the FTC add 15 days onto merger timelines during emergencies, such as disease outbreaks, natural disasters, or government shutdowns.  The proposal also seeks to toll the statute of limitations for price-fixing and bid-rigging cases for at least six months because of the pandemic.
    • FTC Halts Merger Cases Amid COVID-19: The FTC has temporarily halted proceedings in three administrative antitrust merger challenges — Axon, Juul, and Arch Coal — until June, due to the public health emergency associated with COVID-19.

2. Government Investigations / Compliance Considerations
Continue Reading COVID 19 – US and EU Competition Law Implications (30 April 2020)


  • Today’s EU updates:
    • The German government intends to prolong merger procedure time periods, extending phase I investigations to two months and in-depth phase II investigations to six months. The new law will apply to all mergers notified between 1 March 2020 and 31 May 2020. The underlying reason is the significant impact of COVID-19 on the Federal Cartel Office’s daily operations. Due to contact bans and the temporary closure of businesses, merger control investigations may not be concluded within the usual time periods, which might result in a clearance of concentrations which may significantly impede effective competition. The proposed changes aim to allow the authority to further investigate the markets concerned. Skip to relevant section.
    • The Commission has cleared a further number of State aid requests by Member States.  Skip to relevant section.

************

United States

1. Mergers / Filings

    • Early Termination Resumes:  On Friday 27 March, the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) announced that they will resume processing requests for early termination of the 30-day waiting period under the Hart-Scott-Rodino (HSR) Act.  The agencies have cautioned that early termination will be granted in fewer cases, and more slowly, than under normal circumstances.  The announcement also emphasized that the agencies will continue to monitor circumstances, and may need to further modify the early termination policy.
    • Electronic HSR Filings: The FTC and DOJ are continuing to accept HSR merger filings through a temporary electronic filing system that was launched on March 17th.  Hard-copy filings will not be accepted during this period.
    • Extended Timing Agreements:  For mergers currently pending or that may be proposed, the DOJ is requesting, as part of any timing agreement, that merging parties afford it an additional 30 days to complete its review of transactions after the parties have complied with document requests.  (Although the DOJ has not stated it expressly, this likely means 30 days in addition to whatever period of time the parties have agreed to delay their closing beyond the 30-day post-compliance period already provided for by the HSR Act itself.  Thus, for example, if the parties have committed not to close for 60 days after compliance, the DOJ will request that they extend that commitment to 90 days.) The DOJ has cautioned that it may revisit its timing agreements with merging parties in light of further developments.
    • No In-Person Meetings & Depositions:  Meetings at both agencies will be conducted by phone or video conference (where possible).  The FTC has announced that Bureau of Competition meetings, including Front Office meetings, will be held remotely until further notice.  And, the DOJ has postponed all scheduled depositions, and they will be rescheduled using secure videoconferencing capabilities.
    • DOJ Proposal to Extend Merger Timelines and Pause the Statute of Limitations for Price-Fixing Cases: According to a press report, the DOJ hopes to have included in the next round of pandemic legislation, a proposal that would let it and the FTC add 15 days onto merger timelines during emergencies, such as disease outbreaks, natural disasters, or government shutdowns.  The proposal also seeks to toll the statute of limitations for price-fixing and bid-rigging cases for at least six months because of the pandemic.
    • FTC Halts Merger Cases Amid COVID-19: The FTC has temporarily halted proceedings in three administrative antitrust merger challenges — Axon, Juul, and Arch Coal — until June, due to the public health emergency associated with COVID-19.

2. Government Investigations / Compliance Considerations

  • Antitrust Laws During Public Health Emergencies:  The tremendous uncertainty created by the current public health crisis may increase the opportunity and temptation to coordinate with others in the industry or substantially increase prices – but the antitrust laws still apply in full.  There is no collusion exemption for public health emergencies.  For example, DOJ recently announced its intention to “hold accountable anyone who violates the antitrust laws of the United States in connection with the manufacturing, distribution, or sale of public health products.” Read more here.
  • Antitrust Counseling:  The antitrust laws allow for beneficial, pro-competitive collaborations and exchanges of information between competitors, and the needs of responding to a health crisis or other public emergencies are relevant to that determination.  Nevertheless, the antitrust laws apply, and it remains prudent to obtain antitrust counsel regarding communications with competitors and other competitively sensitive activities.
  • Justice Department and Federal Trade Commission Announce Expedited Antitrust Procedure and Guidance for  Coronavirus Public Health Efforts: In a joint statement issued on March 24th, the DOJ and FTC announced that they will aim to respond expeditiously to all COVID-19-related DOJ Business Review Process and Federal Trade Commission Advisory Opinion Process requests, and resolve those addressing public health and safety within seven (7) calendar days of receiving all necessary information.  The expedited procedure requires, among other things, that an applicant provide the agency an explanation of how the arrangement is related to COVID-19 and a description of the nature and rationale of the proposal.  This expedited procedure is for use solely for coronavirus-related public health efforts and may be invoked at the option of the requestor, in lieu of the agencies’ standard procedures for handling requests for advice. The DOJ issued its first business review letter under the expedited procedure on 4 April 2020, five days after receiving a request related to a collaboration aimed at expediting and increasing manufacturing, sourcing, and distribution of personal-protective equipment and coronavirus-treatment-related medication. The agencies will also work quickly to process joint venture filings under the National Cooperative Research and Production Act (as amended by the Standards Development Organization Advancement Act).
  • Ongoing Investigations:  Both DOJ and FTC are conducting a matter-by-matter review of investigations to consider appropriate modifications of statutory or agreed-to timing.  Parties and their counsel should expect the agencies to be in touch to discuss proposed modifications.
  • FTC Reiterates that Emergency Conditions Will Not Alter Traditional Review Procedures:  On 6 April 2020, the FTC published a new blog post that emphasized that the “substance of [their] work remains the same” and “’emergency’ exceptions to the antitrust laws are not needed.” In particular, the FTC stated that its analysis of remedies, including divestitures, will continue to focus on the ability of proposals “to maintain or restore competition in the markets of concern.” To aid parties in that analysis, the blog highlighted the guidance it published in 2019: “A Guide for Potential Buyers: What to Expect During the Divestiture Process.”
  • Price Gouging: Several states have moved to limit price gouging during the COVID-19 pandemic.  For example, the Massachusetts Attorney General issued an emergency regulation banning price-gouging in certain products necessary to public health and safety in light of the corona virus pandemic. Read more here.
  • DOJ and FTC Warn Against Anticompetitive Conduct in Labor Markets: On 13 April 2020, the agencies issued a joint statement announcing that they are on alert for collusion, coordination, and certain unilateral conduct that could harm workers, including doctors, nurses, first responders, and those who work in grocery stores, pharmacies, and warehouses.  Prior to the COVID-19 emergency, the agencies have challenged such practices as wage-fixing, no-poach agreements, non-competes, and exchanges of competitively sensitive information that could harm competition for labor.  The announcement emphasized that, while the DOJ and FTC continue to recognize the need for pro-competitive collaborations during the crisis, they will pursue action against those who “may use it as an opportunity to prey on American workers by subverting competition in labor markets”.

 3. Antitrust Litigation
Continue Reading COVID 19 – US and EU Competition Law Implications (24 April 2020)

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Thursday 16 April. Today’s new updates as compared to the previous update are highlighted – these are the headlines:
  • Today’s US updates:
    • The FTC has temporarily halted proceedings in three administrative antitrust merger challenges — Axon, Juul, and Arch Coal — until June, due to the public health emergency associated with COVID-19. Skip to relevant section.
  • Today’s EU updates:

************

United States

1. Mergers / Filings

    • Early Termination Resumes:  On Friday 27 March, the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) announced that they will resume processing requests for early termination of the 30-day waiting period under the Hart-Scott-Rodino (HSR) Act.  The agencies have cautioned that early termination will be granted in fewer cases, and more slowly, than under normal circumstances.  The announcement also emphasized that the agencies will continue to monitor circumstances, and may need to further modify the early termination policy.
    • Electronic HSR Filings: The FTC and DOJ are continuing to accept HSR merger filings through a temporary electronic filing system that was launched on March 17th.  Hard-copy filings will not be accepted during this period.
    • Extended Timing Agreements:  For mergers currently pending or that may be proposed, the DOJ is requesting, as part of any timing agreement, that merging parties afford it an additional 30 days to complete its review of transactions after the parties have complied with document requests.  (Although the DOJ has not stated it expressly, this likely means 30 days in addition to whatever period of time the parties have agreed to delay their closing beyond the 30-day post-compliance period already provided for by the HSR Act itself.  Thus, for example, if the parties have committed not to close for 60 days after compliance, the DOJ will request that they extend that commitment to 90 days.) The DOJ has cautioned that it may revisit its timing agreements with merging parties in light of further developments.
    • No In-Person Meetings & Depositions:  Meetings at both agencies will be conducted by phone or video conference (where possible).  The FTC has announced that Bureau of Competition meetings, including Front Office meetings, will be held remotely until further notice.  And, the DOJ has postponed all scheduled depositions, and they will be rescheduled using secure videoconferencing capabilities.
    • DOJ Proposal to Extend Merger Timelines and Pause the Statute of Limitations for Price-Fixing Cases: According to a press report, the DOJ hopes to have included in the next round of pandemic legislation, a proposal that would let it and the FTC add 15 days onto merger timelines during emergencies, such as disease outbreaks, natural disasters, or government shutdowns.  The proposal also seeks to toll the statute of limitations for price-fixing and bid-rigging cases for at least six months because of the pandemic.
    • FTC Halts Merger Cases Amid COVID-19: The FTC has temporarily halted proceedings in three administrative antitrust merger challenges — Axon, Juul, and Arch Coal — until June, due to the public health emergency associated with COVID-19.

2. Government Investigations / Compliance Considerations

  • Antitrust Laws During Public Health Emergencies:  The tremendous uncertainty created by the current public health crisis may increase the opportunity and temptation to coordinate with others in the industry or substantially increase prices – but the antitrust laws still apply in full.  There is no collusion exemption for public health emergencies.  For example, DOJ recently announced its intention to “hold accountable anyone who violates the antitrust laws of the United States in connection with the manufacturing, distribution, or sale of public health products.” Read more here.
  • Antitrust Counseling:  The antitrust laws allow for beneficial, pro-competitive collaborations and exchanges of information between competitors, and the needs of responding to a health crisis or other public emergencies are relevant to that determination.  Nevertheless, the antitrust laws apply, and it remains prudent to obtain antitrust counsel regarding communications with competitors and other competitively sensitive activities.
  • Justice Department and Federal Trade Commission Announce Expedited Antitrust Procedure and Guidance for  Coronavirus Public Health Efforts: In a joint statement issued on March 24th, the DOJ and FTC announced that they will aim to respond expeditiously to all COVID-19-related DOJ Business Review Process and Federal Trade Commission Advisory Opinion Process requests, and resolve those addressing public health and safety within seven (7) calendar days of receiving all necessary information.  The expedited procedure requires, among other things, that an applicant provide the agency an explanation of how the arrangement is related to COVID-19 and a description of the nature and rationale of the proposal.  This expedited procedure is for use solely for coronavirus-related public health efforts and may be invoked at the option of the requestor, in lieu of the agencies’ standard procedures for handling requests for advice. The DOJ issued its first business review letter under the expedited procedure on 4 April 2020, five days after receiving a request related to a collaboration aimed at expediting and increasing manufacturing, sourcing, and distribution of personal-protective equipment and coronavirus-treatment-related medication. The agencies will also work quickly to process joint venture filings under the National Cooperative Research and Production Act (as amended by the Standards Development Organization Advancement Act).
  • Ongoing Investigations:  Both DOJ and FTC are conducting a matter-by-matter review of investigations to consider appropriate modifications of statutory or agreed-to timing.  Parties and their counsel should expect the agencies to be in touch to discuss proposed modifications.
  • FTC Reiterates that Emergency Conditions Will Not Alter Traditional Review Procedures:  On 6 April 2020, the FTC published a new blog post that emphasized that the “substance of [their] work remains the same” and “’emergency’ exceptions to the antitrust laws are not needed.” In particular, the FTC stated that its analysis of remedies, including divestitures, will continue to focus on the ability of proposals “to maintain or restore competition in the markets of concern.” To aid parties in that analysis, the blog highlighted the guidance it published in 2019: “A Guide for Potential Buyers: What to Expect During the Divestiture Process.”
  • Price Gouging: Several states have moved to limit price gouging during the COVID-19 pandemic.  For example, the Massachusetts Attorney General issued an emergency regulation banning price-gouging in certain products necessary to public health and safety in light of the corona virus pandemic. Read more here.
  • DOJ and FTC Warn Against Anticompetitive Conduct in Labor Markets: On 13 April 2020, the agencies issued a joint statement announcing that they are on alert for collusion, coordination, and certain unilateral conduct that could harm workers, including doctors, nurses, first responders, and those who work in grocery stores, pharmacies, and warehouses.  Prior to the COVID-19 emergency, the agencies have challenged such practices as wage-fixing, no-poach agreements, non-competes, and exchanges of competitively sensitive information that could harm competition for labor.  The announcement emphasized that, while the DOJ and FTC continue to recognize the need for pro-competitive collaborations during the crisis, they will pursue action against those who “may use it as an opportunity to prey on American workers by subverting competition in labor markets”.

 3. Antitrust Litigation

  • Courts Slowing Cases:  Courts around the country are reacting to the public health crisis by closing facilities and postponing court activities. The Northern District of California, for example, stopped the high-profile Capacitors antitrust case in the middle of trial out of concerns for the health of the jurors and other participants. That court, like many others, is also postponing new trials until 1 May 2020 at the earliest, and it also announced that all pending civil motions—including those in antitrust cases—will be decided without in-person hearings. The Chief Judge of the New York State Courts entered an order on March 22 that puts a stop to all non-essential filings effectively immediately.  Additionally, the deadline for commencement, filing, service of any legal action, notice, motion or other process or proceeding prescribed by any procedural law of NY State, is tolled until 19 April 2020.


Continue Reading COVID 19 – US and EU Competition Law Implications (16 April 2020)

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