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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 Chair 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The forums are another step toward the agencies issuing new merger guidelines, after the FTC unilaterally rescinded the 2020 Vertical Merger Guidelines on September 15, 2021.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. Mintz attorneys will be monitoring and reporting on the summit and the forums.

Should you have any questions about this, or any other antitrust or competition law question, please feel free to contact the attorneys listed above or your Mintz attorney.

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Authors

Bruce D. Sokler

Member / Co-chair, Antitrust Practice

Bruce D. Sokler is a Mintz antitrust attorney. His antitrust experience includes litigation, class actions, government merger reviews and investigations, and cartel-related issues. Bruce focuses on the health care, communications, and retail industries, from start-ups to Fortune 100 companies.

Tinny T. Song

Associate

Tinny T. Song is an attorney at Mintz who assists clients with antitrust and competition matters related to compliance, government investigations, Hart-Scott-Rodino merger review, and CFIUS review. His practice also includes private antitrust litigation.