HSR/Antitrust/Enforcement

The U.S. Office of the Comptroller of Currency (OCC) released a notice of proposed rulemaking (NPR) seeking to “increase the transparency of the standards that apply to the agency’s review of business combinations involving national banks and Federal savings associations.” The NPR includes several amendments to the procedures for reviewing proposed bank mergers under the Bank Merger Act (BMA).

The Federal Trade Commission has announced revisions to HSR Act and Clayton Act Section 8 thresholds, which are indexed annually in alignment with prior year economic activity. The article identifies the adjustments that are likely to be the most relevant to our clients and reiterates several important practice tips.

Read the full client alert.

Full Defense Verdict in One of the Largest-Ever Agriculture Industry Antitrust Trials in the U.S.

NEW YORK, October 26, 2023 – Proskauer, a leading international law firm, announced today that it secured a landmark victory for Sanderson Farms in a blockbuster broiler chicken antitrust conspiracy case. Following a six-week trial, a jury in the U.S. District Court for the Northern District of Illinois delivered a full defense verdict, rejecting the Plaintiffs’ claims that alleged that Sanderson Farms participated in a supply reduction conspiracy with other producers in the broiler industry between 2008 and 2012.

On August 9, 2023, President Biden signed Executive Order 14105 addressing investments by U.S. persons in certain identified national security technologies in “Countries of Concern,” initially naming The People’s Republic of China, The Special Administrative Region of Hong Kong and The Special Administrative Region of Macau. The Order, long anticipated, represents a further tightening of capital flows between the U.S. and China, following several years of increasing scrutiny on Chinese inbound investment into the U.S.

“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.


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 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.