Antitrust & Competition

On April 13, 2020, the Antitrust Division of the US Department of Justice (DOJ) and the US Federal Trade Commission (FTC) issued the “Joint Antitrust Statement Regarding COVID-19 and Competition in Labor Markets” (the Joint Statement).[1] The Joint Statement reinforces, and is consistent with, prior statements that collaborative efforts aimed at improving the nation’s ability to combat COVID-19 and to protect the health of the US population will be given substantial latitude under the antitrust laws. But the Agencies also are keen to remind businesses that antitrust enforcement remains a high priority when it comes to collusion or information sharing that may harm workers.[2] The ongoing pandemic is not a justification for coordination on hiring, wages, benefits, layoffs, or other terms and conditions of employment.

Continue Reading US Antitrust Agencies Remind Parties That Collusion in Labor Markets Remains a Top Enforcement Priority

The Antitrust Division of the US Department of Justice has determined in a business review letter that it will not challenge a plan for several medical supply companies to work together to expedite the distribution of supplies needed to combat the COVID-19 pandemic.

On March 24, 2020, the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) (collectively, the “Agencies”) issued a joint statement (the “Joint Statement”) of antitrust guidance for public and private efforts to address the COVID-19 pandemic.[1] In recognition of the urgent and rapidly evolving nature of the ongoing public health emergency, the Agencies expressed an intention to “respond expeditiously to all COVID-19-related requests, and to resolve those addressing public health and safety within seven (7) calendar days of receiving all necessary information.”[2] The Agencies further explained that “[w]hile these processes generally take several months after the agencies receive all necessary information, the agencies recognize that many individuals and businesses are trying to address a rapidly evolving crisis as quickly as possible.”

Continue Reading US Department of Justice Announces That It Will Not Challenge Collaborative Effort to Manufacture and Distribute COVID-19-Related Medical Supplies

Competition authorities worldwide have responded swiftly to a number of practical challenges resulting from the COVID-19 crisis. Measures that have been introduced in respect of merger control proceedings include: encouraging parties to delay notification of transactions; eliminating face-to-face meetings; requiring communications and documents to be submitted electronically; and suspending or extending statutory deadlines.

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COVID-19 and Competition Authorities

Since its emergence in late December, COVID-19 has reshaped the world’s markets. Bans on travel and gatherings have hollowed out the transport and tourism sectors, while containment measures of various forms affecting over 40% of the entire global population have caused the widespread closure of establishments and driven an unprecedented shift to home working. Added to this, supply issues, together with stockpiling activity and demand shifts, have caused product shortages around the world.

In this environment, competition authorities globally are being pulled in multiple directions, with traditional competition enforcement taking somewhat of a back seat to newer and fast-moving issues. Such issues include grappling with: (i) the reorganisation of administrative priorities in response to capacity-based or other technical restraints; (ii) the need for collaboration between competing businesses in certain sectors; and (iii) the urgent grant of State support to save private entities at risk of failure – in all cases seeking to avoid the unintended consequences of harmful anti-competitive conduct.

Continue Reading How is the United Kingdom Rising to the Competition Challenges of COVID-19?

On March 27, 2020, the US Federal Trade Commission (FTC) announced that it would resume granting early terminations (ETs) of merger filings made under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act). The FTC previously said that it would not grant ET while its temporary e-filing program for HSR filings was in effect during the COVID-19 crisis. Whether ET is granted is an important deal-timing consideration; without it, filing parties must wait the entire 30-day waiting period prior to closing their transactions.

Continue Reading Federal Trade Commission Resumes Granting Early Terminations

It is not surprising to hear from our friends and clients, what about antitrust in a time of national crisis? Do competition laws matter? Are those laws in the way of what needs to be done? Will enforcement agencies be watching? Are the rules regarding competitor collaborations aimed at the crisis different than in less extraordinary times?

In fact, there is a long history of accommodation and practical thinking about the antitrust laws when the times demand it. That pragmatic approach is traceable back to the government’s role in forming a patent pool among major airplane manufacturers in the midst of World War I. The fact that these firms were competitors and that competition in peacetime would be better served by manufacturing without relying on each other’s patents, the national imperative for the U.S. to go to war with the best possible aircraft meant antitrust concerns had to give way.

Continue Reading Antitrust In Times of Emergency

As businesses worldwide implement remote working on a scale that most have never experienced before, it is important not to lose sight of competition law compliance when switching to this new environment.

  1. Contact with competitors

We all have friends – often former colleagues – working across many different sectors; some may work for your direct competitors or up/downstream of your business. As tempting as it might be to discuss how your respective businesses are responding to the economic challenges of COVID-19, it is important to remember not to share any commercially sensitive information – particularly relating to future pricing intentions, geographical areas of focus, capacity or strategic intentions. Anti-competitive conduct remains prohibited and could lead to criminal sanctions, including potentially on individuals.

Continue Reading How Remote are Competition Law Risks When Working Remotely?