Antitrust Law Blog

Earlier today, the FTC published its final rule changing the premerger notification requirements under the Hart-Scott-Rodino Act (HSR Act), making the effective date for using the new HSR Form February 10, 2025. The publication comes roughly a month after the FTC voted unanimously to issue a final rule making significant changes to the premerger notification process. Parties to certain mergers and acquisitions that are required to submit premerger notification forms may use the current HSR Form until February 10, 2025.

According to today’s press release, the premerger notification office (PNO) will publish a detailed overview of the HSR Form changes and will invite practitioners to submit questions of broad applicability and PNO staff will post answer to the website. As we previewed in our alert, front-loading the preparation of premerger notification materials will be critical to ensuring timely submission of the required materials under the new rule.

Seeking to revive a criminal antitrust conviction, the DOJ last week filed its reply brief in support of a petition for certiorari asking the Supreme Court to hear its appeal of a Fourth Circuit decision overturning a 2022 bid-rigging conviction.  In the brief, the DOJ argued that the Fourth Circuit erred when it ruled that only purely horizontal agreements qualify as per se violations of the antitrust laws.   

The defendant, Brent Brewbaker, was an executive of an aluminum parts supplier, Contech.  The government alleged that Brewbaker submitted losing bids to the North Carolina Department of Transportation in an effort to help a downstream customer of Contech, Pomona Pipe Products, win the bid.  Brewbaker was convicted of bid-rigging, in violation of Section 1 of the Sherman Act, and fraud.  The Fourth Circuit upheld the fraud conviction but overturned the Sherman Act one, ruling that because it was not purely horizontal, the agreement between Contech and Pomona should have been reviewed under the rule of reason rather than the per se rule. 

The DOJ argued that the indictment alleged that Contech and Pomona were direct competitors in that they had submitted competing bids for aluminum structure projects, and the fact that the agreement also had a vertical component did not mean that per se treatment was unavailable.  The DOJ argued further that the Fourth Circuit’s decision conflicted with two Supreme Court cases, United States v. Socony-Vacuum Oil Co. and Palmer v. BRG of Georgia, where the Court held that agreements among competitors were per se unlawful even though those competitors also had vertical relationships. 

On May 23, 2024, the Department of Justice Antitrust Division (DOJ) and Attorneys General from 29 states and the District of Columbia sued Live Nation and its wholly owned subsidiary, Ticketmaster, for violations of federal antitrust law in the U.S. District Court for the Southern District of New York. United States of America, et al., v. Live Nation Entertainment, Inc., et al., No. 1:24-cv-03973 (S.D.N.Y. May 23, 2024).  Among other relief, the government is seeking to require the divestiture of Ticketmaster, a little over a dozen years after DOJ allowed Live Nation to acquire Ticketmaster.

The Complaint alleges that Live Nation “serves as the gatekeeper for the delivery of nearly all live music in America today.” DOJ and the Attorneys General allege that Live Nation controls “around 60% of concert promotions at major concert venues” and that Ticketmaster “controls roughly 80% or more of major concert venues’ primary ticketing for concerts and a growing share of ticket resales in the secondary market.” With that control as leverage, the Complaint alleges that Live Nation and Ticketmaster have violated Sherman Act Sections 1 and 2 and various state competition laws.

On March 23, 2024, the Justice Department Antitrust Division (DOJ) and Federal Trade Commission (FTC) jointly issued a Request for Information (RFI) on serial acquisitions and roll-up strategies, a consolidation strategy often used by private equity firms. The RFI seeks information from “any sector or industry in the U.S. economy, including, but not limited to, housing, agriculture, defense, cybersecurity, distribution, construction, aftermarket/repair, and professional services markets.  The RFI is intended to complement the federal government’s investigation into healthcare competition.

The public has 60 days to submit comments to the RFI, meaning until July 22, 2024. According to the RFI, public comments will inform FTC and DOJ enforcement priorities and future actions.