Insights

Washington – June 1, 2023: Crowell & Moring earned 82 rankings for 68 lawyers across 48 categories, as well as 37 national and statewide practice area rankings, in the Chambers USA 2023 guide. The rankings are driven by independent interviews of clients and lawyers at peer firms.

Washington – December 22, 2022: Global Competition Review recognized Crowell & Moring’s Antitrust & Competition Group in its “GCR 100 2023” – the leading ranking of the world’s competition policy law and economics practices. This year marks the 23rd edition of the awards and the 16th consecutive year that the Antitrust & Competition Group has been recognized.

The saga of DNA-sequencing firm Illumina’s quest to acquire cancer detection-test maker Grail ended last month when the Fifth Circuit largely upheld the Federal Trade Commission’s decision to block the deal. The appellate decision is significant on several levels.  First, it is the first time in decades that either federal antitrust enforcer has succeeded in blocking or forcing the abandonment of a vertical merger after litigating to a decision.

After more than two years of preview and consultation, including thousands of public comments, the Antitrust Division of the Department of Justice and the Federal Trade Commission issued the final version of their 2023 Merger Guidelines (“Guidelines”) yesterday, December 18, 2023. As we noted when the draft guidelines were released in July, the final Guidelines both harken back to older, long-standing precedent and provide a framework for how the Agencies apply merger enforcement policy in modern economic markets. The Guidelines hold fast to the Biden administration’s enforcement policy to address harms from what they perceive to be “excessive” corporate consolidation by reinvigorating and enhancing merger enforcement. Yet, the final Guidelines show that the Agencies have responded to at least some of the criticism of the draft version, and may be more likely to align with how courts currently analyze merger challenges.

The Federal Trade Commission took a major step recently to crack down on unlawful interlocking directorates and leverage its “standalone” authority that prohibits “unfair methods of competition.”  In a complaint and consent order issued last week, the FTC alleged that a transaction between EQT Corporation and QEP Partners, LP (Quantum) violated Section 8 of the Clayton Act, the first time in 40 years that the agency has enforced the statute.  The FTC also alleged that the transaction and an existing joint venture independently violated Section 5 of the FTC Act based largely on the prospective ability to share competitively sensitive information, an expansive theory of harm. The consent order goes well beyond the typical remedy for a Section 8 violation – prohibiting the interlock – and also prohibits Quantum from serving on certain other competitors’ boards without prior approval of the Commission.  The Section 5 information sharing remedy is similarly aggressive, requiring the parties to dissolve an existing “cozy” joint-venture and requiring Quantum to divest all EQT shares it acquired in the underlying transaction.  These novel theories of harm and aggressive remedies are a warning shot to companies that the agencies are ramping up scrutiny of board interlocks and competitor information exchanges.

Keynote Speaker: Judge Ian Forrester, General Court of the European Union

Global Competition Review’s 1.5 day international conference is February 1-2, 2019.

When President Trump was elected, there was an assumption that there would be limited federal antitrust enforcement under his administration.  This assumption has turned out to be wildly incorrect.  Federal antitrust enforcers have challenged mega-mergers such as the AT&T/Time Warner merger.  They are actively investigating corporate hiring practices, including “no-poach” agreements among competitors and “non-compete” clauses in franchise agreements.  They are also scrutinizing the data privacy practices and growing market power of large Silicon Valley companies such as Facebook, Google, and Amazon.

Earlier this month, the European Commission published an independent report on the European loan syndication market and its impact on competition in the credit markets. In 2017, the European Commission launched the independent study whose aim was to assess the loan syndication market "in terms of its effectiveness and functioning, and to identify competition concerns".

Crowell & Moring panelists will discuss antitrust compliance issues for both US and European syndicated loan transactions. The session is particularly timely as the European Commission is currently reviewing potential antitrust concerns raised by syndicated lending arrangements with plans to issue a report by year end. When the Commission launched this review, it noted that syndicated lending “exhibits close cooperation between market participants in opaque or in transparent settings, such as over-the-counter (OTC) activities, which are particularly vulnerable to anti-competitive conduct.” Experienced antitrust and lending experts will: