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Volume XII, Number 183

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FTC and DOJ to Host Public Forums on Effects of Mergers Ahead of Issuance of New Merger Guidelines

As a part of the new initiative to revise the antitrust merger guidelines, the Federal Trade Commission (“FTC”) and the Department of Justice Antitrust Division (“DOJ”) announced on March 17, 2022 that the agencies will host four listening forums on the firsthand effects of mergers and acquisitions.  FTC Chair Lina Khan and Assistant Attorney General of the DOJ Antitrust Division Jonathan Kanter stated that the purpose of the forums is to “address mounting concerns” regarding problems resulting from the “ongoing merger surge that has more than doubled merger filings from 2020 to 2021.”

Following the current trend at the agencies, the forums will focus on industries and labor markets in food and agriculture, health care, media and entertainment, and technology. Similar to the FTC’s recent Open Commission Meetings, the forums will be held virtually and open to the public. The forums will feature speakers such as independent business owners, entrepreneurs, farmers, workers, and other industry participants—followed by an open period for public comment.

The forum focusing on Health Care is likely to include discussion on the agencies’ renewed focus on the application of antitrust law to promote competition in labor markets, as well as the FTC’s recent appetite for conducting a 6(b) study on Pharmacy Benefit Managers. The proposed study failed 2-2 at the Commission’s February 17 Open Meeting, but Khan quickly released a Request for Information on PBMs the following week. Those comments are due April 25, 2022.

The date and time for each forum is listed below, and the webcasts will be available on the Commission’s homepage:

  • Food & Agriculture – Monday, March 28 at 3:00 PM EST

  • Health Care – Thursday, April 14 at 2:00 PM EST

  • Media & Entertainment – Wednesday, April 27 at 1:30 PM EST

  • Tech – Thursday, May 12 at 2:00 PM EST

The forums are another step toward the agencies issuing new merger guidelines, after the FTC unilaterally rescinded the 2020 Vertical Merger Guidelines on September 15, 2021. The new guidelines, expected in late 2022, will likely include language focusing on the impact of mergers and acquisitions on the labor market, as the agencies have both recently committed to the Biden Executive Order on Competition’s “Whole-of-Government” approach to addressing labor issues in M&A.

The agencies intend to solicit feedback from industry participants and the public at these forums to “ensure that the agencies hear from affected groups who might not otherwise participate in the process.”  The forums also supplement the Enforcers Summit, which will be held on April 04, 2022.  The Summit will feature Chair Khan, AAG Kanter, and senior staff from the agencies discussing ways to modernize the merger guidelines and opportunities for interagency collaboration. The Summit will host international enforcers and state attorneys general as well. 

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 81
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About this Author

Bruce Sokler, Mintz Levin Law Firm, Washington DC, Health Care, Antitrust and Litigation Attorney
Member

Bruce is Chair of the Antitrust Section and in his over 30 years in private practice, he has developed extensive experience in both antitrust and communications regulation, including associated First Amendment and copyright law matters

In the antitrust area, Bruce’s practice includes antitrust counseling and representation in connection with federal and state governmental matters, as well as private antitrust litigation. He counsels and has represented Fortune 100 companies, not-for-profits, start-up entities, and domestic and international joint ventures. Bruce has been involved in...

202-434-7303
Associate

Tinny assists clients with addressing antitrust and competition issues in connection with federal and state matters, including compliance, government investigations, Hart-Scott-Rodino (HSR) merger review, and review by the Committee on Foreign Investment in the United States (CFIUS). Tinny’s practice also involves private antitrust litigation, including class actions.

Prior to joining Mintz, Tinny was an associate in the antitrust practice of a law firm in New York, where he assisted clients in private antitrust litigation involving price-fixing, benchmark and commodities...

202.434.7415
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