New HSR Rules Will be Finalized Within Weeks, According to DOJ Official
Covington Competition
by Jim O’Connell, James R. Dean Jr., Ross Demain, Ryan Quillian, Stacy Kobrick and John Kendrick
5d ago
Last summer, the antitrust agencies proposed sweeping changes to the Hart-Scott-Rodino (“HSR”) Act premerger notification form and associated rules. Covered in detail here, the proposed changes would significantly increase the time, burden, and costs on merging parties to prepare an HSR filing. The public comment period ended on September 27, 2023. Since then, the agencies have given little indication what changes would be made in response to the comments or when the proposed rules would be finalized. Yesterday, DOJ antitrust officials provided updates on both fronts during the American Bar As ..read more
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U.S. Competition Agencies File Statement of Interest in Algorithmic Pricing Case
Covington Competition
by John Playforth and August Gweon
5d ago
On March 28, 2024, the U.S. Department of Justice and the Federal Trade Commission jointly filed a Statement of Interest on behalf of the United States in the case of Cornish-Adebiyi v. Caesars Entertainment, 1:23-CV-02536 (D.N.J. Mar. 28, 2024).  In the Statement, the agencies express their disagreement with two legal arguments asserted by the Cornish-Adebiyi defendants in their motion to dismiss.  First, the agencies argue that, although communications between competitors “can be highly probative of an agreement,” there is “no rule requiring proof of such communications” in order t ..read more
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The EU Foreign Subsidies Regulation – Key takeaways from the first 100 days
Covington Competition
by Carole Maczkovics, Alessandro Cogoni, Laurie-Anne Grelier, Johan Ysewyn and Christian Ahlborn
3w ago
The EU Foreign Subsidies Regulation (“FSR”), which creates a new clearance mechanism for non-EU subsidies granted to companies engaging in certain activities in the EU, took effect on 12 July 2023, with notification obligations starting on 12 October 2023. On 22 February 2024 the European Commission’s (“Commission”) Directorate General for Competition (“DG COMP”) published a Policy Brief discussing the 100 days since the start of the notification obligation for concentrations. This post provides an update to our previous blog post on FSR enforcement expectations for 2024, taking ..read more
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Was 2023 a green antitrust year? Five sustainability related competition law developments you need to know
Covington Competition
by Johan Ysewyn, Kevin Coates, Sophie Albrighton and Eirini Marnera
1M ago
2023 saw a number of developments concerning the interplay between sustainability considerations and competition policy. This blog post highlights the five key developments that businesses need to know when collaborating to achieve sustainable aims. Key takeaways Authorities in the EU and UK resisted calls for introducing a sustainability safe harbour and adopted guidelines based on a case-by-case examination of sustainability agreements. However, sustainability agreements concerning agri-food and environmental damage may benefit from “soft(er)” safe harbours in certain jurisdictions. A combi ..read more
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Outbound investment screening in the EU – A major step forward?
Covington Competition
by Horst Henschen, Ross Evans and Martin Juhasz
2M ago
The European Commission (the “Commission”) issued a White Paper on Outbound Investments (the “White Paper”) on 24 January 2024, setting out non-binding proposals for a detailed analysis of EU outbound investment. With its initiative, the Commission aims to understand whether the current limited regulation in the area of outbound investments is allowing leakage of strategic technologies and leading to potential risks to security. The conclusions of any review would inform possible EU policy responses, including whether to adopt EU-level rules regarding the screening of outbound investment to th ..read more
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Draft EU Screening Regulation – a new chapter for screening foreign direct investments in the EU
Covington Competition
by Horst Henschen, Laurie-Anne Grelier, Martin Juhasz and Michelle Adam
2M ago
On 24 January 2024, the European Commission (the “Commission”) published its European Economic Security Package (the “EESP”), which included the long-awaited proposal to reform the EU Regulation which established a framework for Foreign Direct Investment screening (the “EU FDI Regulation”). The EESP’s proposed regulation (the “Proposed Regulation”) is one of the EESP’s five initiatives to implement the European Security Strategy (published in June 2023) – for an overview of the EESP, see our Global Policy Watch blog. The Proposed Regulation seeks to improve the legal framework for foreign inve ..read more
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UK Government Consults on Amending Mandatory Filing Obligations for AI Acquisitions
Covington Competition
by Christian Ahlborn, James Marshall and Tomos Griffiths
2M ago
Recent proposals to amend the UK’s national security investment screening regime mean that investors may in future be required to make mandatory, suspensory, pre-closing filings to the UK Government when seeking to invest in a broader range of companies developing generative artificial intelligence (AI). The UK Government launched a Call for Evidence in November 2023 seeking input from stakeholders on a number of potential amendments to the operation of the National Security and Investment Act (NSIA) regime, including whether generative AI, which the Government states is not currentl ..read more
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The EU Foreign Subsidies Regulation – Enforcement expectations for 2024
Covington Competition
by Carole Maczkovics and Laurie-Anne Grelier
3M ago
The EU Foreign Subsidies Regulation (“FSR”), which creates a new screening mechanism for non-EU subsidies granted to companies doing business and engaging in certain activities in the EU, took effect on 12 July 2023, with notification obligations starting on 12 October 2023. This post looks back at the FSR’s first six months and attempts to provide an outlook of what companies active in the EU can expect in 2024.   Key Takeaways Based on the reported enforcement activity of the European Commission (“Commission”) to date,[1] we see three main takeaways that businesses could expect from FSR ..read more
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Towards a More Interactive Merger Review Process: UK CMA Proposes Amendments
Covington Competition
by James Marshall, Sophie Albrighton, Robin Campbell and Tomos Griffiths
4M ago
What do you need to know? Following a call for information earlier this year, the UK’s Competition and Markets Authority (CMA) has now announced the changes it intends to make to its merger review process. The majority of the changes are to the Phase 2 process, which is only encountered in a minority of formal reviews, namely those where the CMA believes the merger could lead to a substantial lessening of competition – at the time of writing, of the 76 merger reviews opened by the CMA since 1 January 2022, only nine (12%) had been referred to Phase 2 (whereas around 10% of non-simplified merge ..read more
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Recently Published FTC Data Confirm Historically Low Number of Merger Enforcement Actions
Covington Competition
by Ryan Quillian
4M ago
On November 3, 2023, FTC Chair Lina Khan sent a letter addressed to Representative Thomas P. Tiffany describing the FTC’s merger enforcement program during her tenure at the agency. The letter was a response to an inquiry from seven members of congress for information about the costs associated with certain litigated merger challenges brought by the FTC. Chair Khan’s letter included an appendix that listed all of the merger enforcement actions the FTC had initiated during her tenure. The data in that appendix corroborate the key finding from an article I authored for Law360 in October 2023: me ..read more
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