June 13, 2022
Antitrust: The FTC Wants to Fight
In a recent interview with Axios, FTC Chair Lina Khan said that the agency isn’t inclined to devote a lot of resources to help companies fix deals that raise antitrust issues. Instead, she said the FTC wants to litigate:
Khan said the pattern of companies coming to the FTC with illegal deals and expecting agency staff to spend months working to “fix” them through divestiture or other means is not happening under her watch.
– “That is not work that the agency should have to do,” Khan said. “That’s something that really should be fixed on the front end by parties being on clear notice about what are lawful and unlawful deals.”
– Khan said the agency hasn’t banned the current approach, in which companies try to meet FTC requirements under the terms of a consent decree. But, she added, “We’re going to be focusing our resources on litigating, rather than on settling.”
Khan’s posture echos that of the DOJ’s Jonathan Kanter. Given the agencies’ belligerent stance, it’s essential to identify and address potential antitrust issues prior to making an HSR filing. Since that’s the case, you may want to take a look at this Latham memo, which provides some advice on best practices to manage the risks of merger review in the current environment.
– John Jenkins