Minnesota Lawyer
The federal government is concerned about competition in the marketplace, particularly a horizontal merger between competitors.
That may be a situation for F. Matthew Ralph, co-chair of Dorsey’s Antitrust Practice Group and a member of Dorsey’s Commercial Litigation Group.
Deals that are big enough don’t wait to attract the attention of the government — the parties file notifications required by the Hart-Scott-Rodino Act and their deal gets referred to the Federal Trade Commission or the Department of Justice for review.
A Department of Justice review follows conventional antitrust analysis, and the FTC may be more original, Ralph said. He thinks lawyers have a better idea of whom they are dealing with if it’s the DOJ.
There’s some tension about the FTC, which has sent out more second notices after the parties’ initial disclosure, causing increased expense and delay. It has also ended the practice called “early termination” whereby a party could get an expedited consent to close the deal.
In November 2022 the FTC issued a statement that it was stepping up its enforcement on unfair competition. “In recent years the agency has not always carried out that responsibility consistently, the statement said. “Through enforcement and rulemaking, the commission will put businesses on notice about how to compete fairly and legally.”
Ralph observed that protecting consumer prices is not the only goal of the FTC, which has other constituencies, including workers.
There are still a lot of client questions, Ralph said. Enforcement has increased, more cases being brought, we’re still sort of wondering are the premises of antitrust going to be long-term policies, he said.
