Antitrust Enforcement in 2023: Vertical Mergers, Interlocking Directorates, Unfair Competition, Information Sharing

Description

The Biden administration has generally advocated for a broader interpretation of what constitutes anticompetitive behavior. Antitrust agencies have signaled a more aggressive posture towards many mergers and a willingness to litigate more merger challenges than in the past.

While the agencies have historically viewed vertical transactions as likely to pose fewer competition concerns, recent developments have called that approach into question. Enforcers also continue to challenge mergers involving supposed nascent competitors, particularly in the technology sector.

Recent scrutiny of interlocking directorates by the DOJ and the FTC indicates that antitrust authorities may escalate enforcement of Section 8 of the Clayton Act. This new focus is notable for private equity funds that might have directors on the boards of portfolio companies who could be viewed as competitors.

In November 2022, the FTC released a new policy statement regarding Section 5 of the FTC Act, which prohibits unfair methods of competition in or affecting commerce. Under the new policy statement, the FTC plans to "focus on stopping unfair methods of competition in their incipiency based on their tendency to harm competitive conditions."

On Feb. 2, 2023, DOJ announced that the Antitrust Division plans to withdraw policies, originally issued in 1993, that established "antitrust safety zones " for certain conduct and have not yet provided any new guidance. The withdrawal introduces some uncertainty regarding practices that were regarded as low risk under the previous guidance and could lead to increased litigation and enforcement actions.

Listen as our authoritative panel examines these and other developments in antitrust enforcement, and the implications for corporate transactions and conduct going forward.