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August 06, 2020

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Do the New FTC/DOJ Vertical Merger Guidelines Provide Clarity?

On June 30, 2020, the Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) released final Vertical Merger Guidelines. As noted previously, the agencies had issued draft guidelines that were subject to public comment. The release of the final guidelines comes amid congressional pressure for increased scrutiny of vertical mergers.

The FTC and DOJ emphasized that the final guidelines, although only 12 pages long, provide transparency, predictability, and clarity into the investigatory processes of the agencies with regard to vertical mergers. Of particular note, the agencies removed the “safety zone” they had included in the draft guidelines (where they had stated that the agencies would be unlikely to challenge a vertical merger when the parties to the merger have a share in the relevant market of less than 20 percent, and the related product is used in less than 20 percent of the relevant market). The agencies do note (in terms of market evaluation) the following:

The [FTC and DOJ] use the methodology set out in Section 5 of the Horizontal Merger Guidelines to measure shares and concentration in a relevant market, but do not rely on the thresholds in Section 5.3 as screens for or indicators of competitive effects from vertical theories of harm. Existing levels of concentration may nonetheless be relevant.

As a result, it will still be important to review relevant case law related to vertical mergers in order to obtain full clarity on the issue.  

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 191


About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

Patricia M. Wagner, Epstein becker green, health care, life sciences

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities 

Advising clients on issues related HIPAA Privacy and security

Advising clients on issues related to state licensure and regulatory requirements