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.

Last year, we warned that the Federal Trade Commission was starting to go after directors, owners and private equity firms in control of entities that violated American antitrust laws. That has now proven true.
On 21 September, the FTC filed a 106-page complaint in the US District Court for the Southern District of Texas against US Anesthesia Partners Inc. and its private equity investor, Welsh Carson Anderson & Stowe XI LP.

On Friday 16 June 2023, the Federal Trade Commission’s Bureau of Competition issued a strong warning to companies regarding the inclusion of certain types of contract terms that can “impede investigations” and “are contrary to public policy and unenforceable.” Specifically, the announcement warned against confidentiality clauses, nondisclosure agreements, and “notice of agency contact” provisions, commonly used in business-to-business and employment contracts.

On 3 February 2023, the US Department of Justice announced the withdrawal of three antitrust policy statements that allowed certain information exchanges between competitors in healthcare markets. The day before this announcement, Principal Deputy Assistant Attorney General Doha Mekki of DOJ Antitrust Division warned that DOJ would reconsider these outdated policy statements in light of recent changes in the healthcare industry.

Baker McKenzie’s Government Procurement Update resource center gives you the latest guidance, trends and enforcement actions related to government procurement (both US government contracting and international financing institutions), including suspension and debarment, bid protests, and False Claims Act defense. Calling upon our deep bench of more than 4,000 lawyers and legal professionals worldwide, we will occasionally feature guest practitioners to write about related topics in the criminal, civil, and administrative context. Readers can expect to find practical guidance and tips for compliance with public procurement policies as well as best practices for managing government inquiries and litigation.

On 15 February 2022, the Department of Defense (DoD) released a 30-page report titled State of Competition within the Defense Industrial Base (“Report”) surveying the state of competition across key defense sectors and laying out recommendations to spur increased competition in the defense industrial base. The Report is one of many required by numerous agencies in response to Biden’s July 2021 Executive Order.

Two years ago, on 5 November 2019, the Department of Justice (DOJ) announced the formation of the Procurement Collusion Strike Force (PCSF). DOJ press releases indicated the purpose was to create a joint, collaborative interagency partnership focused on deterring, detecting, investigating, and prosecuting antitrust crimes. The Strike Force has prosecutors from 22 US Attorneys’ Offices and 7 national law enforcement partner agencies, including the Antitrust Division of the DOJ, investigators from the Federal Bureau of Investigation, and the Inspectors General for multiple Federal agencies. To date, the PCSF is active in almost a quarter of US judicial districts and coordinates with many US agencies and offices.

On 14 September 2021, the US Department of Justice’s Antitrust Division and the US Federal Trade Commission issued a Joint Statement on antitrust enforcement regarding collaborative relief efforts after Hurricane Ida. The Statement recognizes that collaboration among companies – even among competitors – may be necessary and beneficial to assist communities with rebuilding and relief efforts. However, the Statement also makes clear that neither agency will tolerate attempts to subvert competition laws or engage in illegal conduct under the guise of disaster recovery.

On November 5, 2019, the United States Department of Justice (DOJ) announced the creation of a strike force, consisting of federal and state investigators and prosecutors, designed to target collusion in government procurement. This is the most recent joint law enforcement effort to combat antitrust crimes and related fraudulent practices,…