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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Commercial Law

Date & Time
  • event Date

    Thursday, March 7, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE webinar will discuss the 2023 Merger Guidelines issued jointly by the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC). The panel will highlight the need for companies to plan carefully for M&A activity and to anticipate an increased likelihood of additional regulatory antitrust scrutiny and litigation for certain transactions.

Faculty

Michael H. Knight
Partner
Jones Day

With more than 25 years of experience as an antitrust lawyer in both government and private practice, Mr. Knight advises clients on a full range of competition law matters including mergers, joint ventures, competitor collaborations, distribution issues, price discrimination, monopolization, and intellectual property restraints. He routinely represents clients before federal and state antitrust agencies and federal courts. Mr. Knight also co-heads the firm’s Hart-Scott-Rodino Act premerger notification team. He served as an assistant director of the FTC’s Bureau of Competition from 2003 to 2007, heading the Bureau's Mergers II Division, where he oversaw hundreds of investigations across an array of industries including technology, chemical manufacturing, mining, and agriculture. Mr. Knight has held various leadership positions in the ABA's Section of Antitrust Law over the past 18 years and currently serves on the editorial board of the Section's Antitrust Source publication. He writes and speaks frequently on antitrust enforcement topics.

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Christopher A. Williams
Partner
Perkins Coie

Mr. Williams focuses his practice on antitrust issues related to commercial transactions, including mergers and acquisitions; joint ventures and other strategic collaborations; licensing of intellectual property; and pricing, supply, and distribution agreements. His experience includes cross-border matters involving regulatory authorities in China, Japan, South Korea, and Europe. Mr. Williams advises on all aspects of merger control, including evaluating regulatory clearance; advising on transaction structure and antitrust risk allocation in M&A agreements; preparing merger notification filings, including under the Hart-Scott-Rodino Antitrust Improvements Act; advocating for clients in Second Request investigations by the DOJ and FTC; directing strategy in merger reviews by foreign competition authorities; advising on remedy proposals and negotiations; representing interested third parties and divestiture buyers; and providing guidance on diligence, integration planning, and other pre-closing matters.

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Henry J. Hauser
Counsel
Perkins Coie

Mr. Hauser has significant experience with antitrust litigation, investigations, and advocacy. He started his career as a trial attorney with the U.S. Department of Justice (DOJ), Antitrust Division, where he led the division’s first criminal prosecution of an e-commerce conspiracy. Mr. Hauser’s work at the division also included criminal investigations and litigation in the liquid crystal display, automotive parts, and capacitors industries. In addition, he was part of the trial team that successfully challenged a $54 billion merger in the health insurance industry. Mr. Hauser also worked in the Technology Enforcement Division of the U.S. Federal Trade Commission (FTC) and he is currently an adjunct professor at the University of Colorado School of Law where he teaches Antitrust Law.

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Description

On Dec. 18, 2023, the DOJ and FTC issued new Merger Guidelines that explain how both agencies will analyze whether potential transactions may violate antitrust laws. The Guidelines lower the concentration thresholds at which the agencies deem mergers to be presumptively unlawful and take a more expansive view of potential competitive harms, which likely will lead to more frequent and thorough investigations of certain transactions and added time for regulatory review before those transactions can close.

The agencies set forth 11 points or "guidelines" that will be used in determining whether they consider a transaction potentially anticompetitive. Guidelines 1-6 describe distinct frameworks the agencies use to identify whether a merger raises prima facie concerns. Guidelines 7-11 describe factors the agencies will consider in applying the frameworks set out in Guidelines 1-6.

Although not legally binding, these new Guidelines are a critical component in the merger enforcement process. Antitrust practitioners refer to them when advising clients and courts historically have cited agency guidelines in their opinions in merger enforcement cases. Regardless of whether courts follow the new Guidelines, however, prolonged agency investigations and/or opposition can sometimes be enough to kill a deal before it ever reaches litigation.

Listen as our authoritative panel of antitrust experts discusses the new Merger Guidelines and how these changes reflect the current FTC and DOJ enforcement priorities already in place. The panel will also provide tips on how to advise clients to anticipate an increased likelihood of additional regulatory scrutiny for future M&A activity.

Outline

  1. Role of Merger Guidelines
    • Tool/framework for agencies and public
    • Potential guidance to courts
  2. Comparison of new Guidelines with draft Guidelines that were released in July 2023
  3. Overview of the new Merger Guidelines
    • The 11 separate guidelines agencies will apply to determine the competitive effects of a merger
    • Evidence considered/standards
    • Approach to market definition
    • Defenses (e.g., efficiencies, failing firm defense)
  4. How the new Guidelines compare to recent case law
  5. Interplay between the new Guidelines and proposed revisions to the HSR filing requirements
  6. What potential antitrust concerns and solutions parties should consider early in the merger process
  7. Key takeaways and practical considerations
    • New Guidelines and their impact on courts' views and decisions
    • Future of the new Guidelines if a new administration takes office in 2025

Benefits

The panel will review these and other key issues:

  • The rationale behind the new Merger Guidelines and comparison between the final version and the earlier draft
  • The 11 separate guidelines that will be used in determining whether a transaction is potentially anticompetitive
  • How the new Merger Guidelines reflect the government's enforcement priorities
  • How practitioners should advise clients considering M&A activity in light of these new Guidelines