Prior to 1995, the Federal Trade Commission (“FTC”) required parties to a Commission Order entered in a merger case to obtain the FTC’s prior approval for any future transaction in similar markets above a de minimis threshold. This frequently included the requirement to provide prior notice of transactions that fell below the reporting thresholds of the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”).

In 1995, pursuant to its Policy Statement on Prior Approval and Prior Notice Provisions (“Policy Statement”), the FTC ended its blanket practice of requiring prior notice and approval in merger cases.  At that time, the FTC concluded that the HSR process provided an effective means of investigation, challenging most anticompetitive transactions before they occurred, and that implementation of this new Policy Statement would act as a guardrail against questionable exercises of enforcement discretion.  In addition, the FTC concluded that in circumstances where a credible concern that parties to an unlawful merger might attempt the same or similar transaction, or engage in an otherwise unreportable anticompetitive merger, a more narrow prior approval provision would be appropriate.

Recently, however, claiming that the FTC is too understaffed and burdened to rely on HSR alone, the Commission voted 3-2 to rescind the 1995 Policy Statement, and revert back to the pre-1995 requirement that all merger-related settlement agreements include notice and prior approval provisions.  This reversion back to the pre-1995 policies may increase merger costs, potentially deter the entry of pro-competitive transactions, and possibly inject more uncertainty into the merger enforcement process.  It also provides another example of the FTC’s apparent shift from enforcer to regulator.

* * *

For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte:

E. John Steren
Member of the Firm
esteren@ebglaw.com
Patricia Wagner
General Counsel / Chief Privacy Officer
pwagner@ebglaw.com
Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.