The Commissioners of the Federal Trade Commission (FTC) have voted unanimously to issue a final rule developed by both the Antitrust Division of the US Department of Justice and the FTC, updating the Premerger Notification Rules that implement the Hart Scott Rodino Antitrust Improvement Act (“HSR Act”), including substantial changes to the HSR Form.

A federal judge in Texas recently issued a nationwide injunction against the Federal Trade Commission’s rule banning most employee noncompetes. The injunction relieves employers from having to comply with the rule, meaning that employers can maintain noncompete agreements they have in place with employees. The FTC issued a statement indicating that it is considering its appeal options to remove the injunction, and noted that it remains able and willing to challenge the legality of noncompetes on a case-by-case basis, which was never in dispute.

A federal judge in the Northern District of Texas has granted a preliminary injunction that partially enjoins the Federal Trade Commission’s (FTC) final rule on noncompete covenants. In sum, the judge found that “the Commission has exceeded its statutory authority in promulgating the noncompete rule” and noted that the “role of an administrative agency is to do as told by Congress, not to do what the agency thinks it should do”. Most notably, the court determined that the plaintiffs are likely to succeed on the merits of their challenge to the rule because the FTC lacks substantive rulemaking authority.

The US District Court for the Southern District of Texas has granted a motion to dismiss the FTC’s lawsuit filed by private equity firm Welsh, Carson, Anderson & Stowe (WCAS), but denied the motion to dismiss filed by its minority-owned portfolio company, US Anesthesiology Partners, Inc. (USAP). The FTC alleged that WCAS and USAP developed and pursued an anticompetitive acquisition strategy to “roll-up” multiple Texas-based aesthesia practices in violation of federal antitrust law. The court granted WCAS’s motion to dismiss because it found that its minority, non-controlling stake in USAP was insufficient to support a violation of federal antitrust law.

Both the Antitrust Division of the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) (collectively, “Agencies”) have submitted a joint Statement of Interest in a third-party dispute currently active in the Federal District of New Jersey. The Statement clarifies the Agencies’ positions on price fixing through the use of algorithms. The third-party dispute involves a class action against casino hotels in the Atlantic City, New Jersey area.

On 18 December 2023, the Antitrust Division of the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly issued their highly anticipated final version of the 2023 Merger Guidelines . The issuance of the Guidelines follows the agencies’ release of draft guidelines in July and the conclusion of a public notice-and-comment period. The Guidelines set out how the agencies assess whether mergers and acquisitions threaten anticompetitive harm in violation of US antitrust laws.

Most notably, the newly issued Guidelines retained the lower thresholds for establishing presumptions of anticompetitive harm — including if the merger gives the combined firm more than 30% market share. Additionally, the Guidelines outline a holistic approach for analyzing vertical mergers.