DealLawyers.com Blog

On August 28, the DOJ, FTC, DOL and NLRB signed a Memorandum of Understanding on Labor Issues in Merger Investigations that will, according to the FTC’s press release, enhance the “ability of the FTC and DOJ to investigate the impact of mergers and acquisitions on labor markets.”

The MOU outlines the following terms, among others:

– The DOL will train appropriate personnel from the antitrust agencies on the issues under their jurisdiction.
– The NLRB will train appropriate personnel from the antitrust agencies on the duty to bargain in good faith, successor bargaining obligations, and unfair labor practices, among other topics.
– The antitrust agencies and the labor agencies will endeavor to meet biannually to discuss implementation and coordination of the activities described in the MOU.
– The MOU makes clear that it supplements, and does not supersede, the previously identified bilateral agreements between the labor agencies and antitrust agencies.

This Sheppard Mullin blog has this to say about the impact of this MOU on merger review:

[T]his MOU … makes clear that the Antitrust Agencies have committed to using not just their resources, but also leveraging the resources and expertise of other federal agencies in closely examining the impact of mergers under their review on labor markets.

The agency cooperation and information sharing contemplated under these MOUs likely will put more government eyes on employers and potentially more documents in the hands of the Antitrust Agencies, which could slow merger review and lead to additional civil and criminal antitrust investigations. Merging parties before the Antitrust Agencies and those engaging with the NLRB should be aware of this inter-agency cooperation and beware that their documents and information could spawn antitrust investigations.

– Meredith Ervine