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Colin Kass

Colin Kass is a partner in the Litigation Department and Co-Chair of Proskauer’s Antitrust Group. As a seasoned trial lawyer, Colin has handled many of the nation’s most complex and innovative antitrust cases over the past 20 years.

His practice involves a wide range of industries, including financial services, healthcare, sports, media, pharmaceuticals, and automotive markets, and spans the full-range of antitrust and unfair competition-related litigation, including class actions, competitor suits, dealer/distributor termination suits, price discrimination cases, criminal price-fixing probes, and merger injunctions.

Colin also has extensive experience interfacing with the Federal Trade Commission and Department of Justice, obtaining clearance for competitively-sensitive transactions and handling anticompetitive practices investigations.

As a trusted advisor, Colin also counsels clients on their sales, distribution, and marketing practices, strategic ventures, and general antitrust compliance.

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“Merger review is about to get thornier. While the FTC and DOJ have been tightening the merger review process incrementally over the course of the Biden administration, the newly proposed HSR rule changes represent a wholesale rethinking of how merger transactions are notified and filed. The new filing requirements, if implemented, would essentially trigger a significant antitrust investigation for every transaction valued above the HSR reporting threshold (currently $111.4 million) – without regard to substantive overlap or potential impact on competition. That, along with the expanded new disclosures aimed squarely at private equity firms and their investors, will make for frank conversations about the requirements and potentially will have a real chilling effect on transactions. Whether this is a wish list meant to be pared down, or something the agency will hold firm on remains to be seen.”

John Ingrassia, Antitrust, Washington, D.C.

On the heels of the historic proposed changes to the Hart‑Scott‑Rodino (“HSR”) merger review process, the U.S. Department of Justice Antitrust Division and the Federal Trade Commission released the 2023 Draft Merger Guidelines for public comment. The single set of guidelines will replace the former horizontal and vertical guidelines, becoming the principal resource for merger review and challenges. The DOJ and FTC will finalize the Draft Guidelines following the close of the 60‑day comment period on September 18, 2023. Together, the two sets of changes usher in a radically different climate for dealmaking in the U.S. and have the potential to grind transactions to a near halt just as M&A is beginning to regain steam.

In the latest of a string of losses for antitrust enforcers, the Northern District of California resoundingly denied the FTC’s bid to enjoin the Microsoft-Activision merger, allowing the deal to proceed a week in advance of its upcoming merger termination date. In a case that tested the bounds of antitrust law in vertical integration deals, Presiding…

On June 15, 2023, the Federal Trade Commission’s Bureau of Competition issued a statement on the relationship between voluntary interviews with the agency and contractual provisions that require or limit the disclosure of information. The Bureau explains that voluntary interviews are a key aspect of investigations because they “are essential to help [them] understand real-world dynamics and effects,” and “reduce unnecessary burdens on marketplace stakeholders and Bureau staff.” In the statement, the Bureau asserts that certain contractual restrictions impede investigations, and should be considered void.

On June 29, 2023, the Federal Trade Commission published a Notice of Proposed Rulemaking that would dramatically expand HSR reporting requirements. The historic changes fundamentally alter the HSR reporting landscape, shifting to more of a “white paper” approach, similar to that of ex‑U.S. jurisdictions like the EU. The change though brings new expansive reporting requirements to nearly sixfold the number of transactions seen in the EU (the EU took in about 400 ECMR filings last year, versus nearly 2,500 HSR filings at the FTC). The move would substantially increase the burden on reporting parties, and impact deal timing and certainty.

On June 15, 2023, the Federal Trade Commission’s Bureau of Competition issued a statement on the relationship between voluntary interviews with the agency and contractual provisions that require or limit the disclosure of information. The Bureau explains that voluntary interviews are a key aspect of investigations because they “are essential to help [them] understand real-world dynamics and effects,” and “reduce unnecessary burdens on marketplace stakeholders and Bureau staff.” In the statement, the Bureau asserts that certain contractual restrictions impede investigations, and should be considered void.

In an unsigned per curiam opinion yesterday in Gonzalez v. Google, the U.S. Supreme Court vacated the Ninth Circuit’s judgment— which had held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act – and remanded it. But the Court’s opinion entirely skirted a highly-anticipated issue: whether Section 230 does, in fact, shelter as much activity as courts have held to date.

As this year’s roundtable of enforcers demonstrated, big business is probably antitrust enforcers’ greatest fear. Spring in Washington means Cherry blossoms and antitrust. And last week, 3,700 antitrust lawyers and government officials from around the globe descended on Washington to visit the Cherry blossoms and discuss how they need more government intervention to make the economy work for everybody and need to bring ever more “plausible” cases in order to nudge and push the courts along.

The good news though is that many of these same enforcers recognize that courts are not ready or willing to accept a more aggressive antitrust enforcement regime; that courts are largely standing in the way of any immediate and major changes to antitrust doctrine and law; and that courts and not enforcers have the final say.

Section 230 of the Communications Decency Act was originally thought of as “force for securing decency on the Internet,” as the late Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit explained in a dissenting opinion in the 2019 Force v. Facebook Inc. case.

But its enactment under Title 47 of the U.S. Code, Section 230 also represented a commitment to the preservation of “the vibrant and competitive free market.”[2]

The free market ideal — explicitly codified in the statute — has taken prominence over the decent-internet ideal, and Section 230 has become the most powerful legal protection for online platforms that rely on content created or shared by others.

The DOJ continued its transformation of long-standing antitrust policy on February 3rd, withdrawing a slate of long-standing antitrust policy statements addressing healthcare markets and providers. The three guidance documents, though non-binding, provided certainty in healthcare deal making for the past three decades.The first statement, issued September 1993, impacts antitrust safety zones for hospital mergers, hospital…