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Corporate Counseling January 2024 Update

Brian Joseph Boyle, Amanda L Wait, Mandy Chan, Carsten Reichel, and William Kirton

The January update for in-house counsel covers new and ongoing antitrust issues. The update includes key highlights on the 2023 FTC and DOJ Merger Guidelines and the "presumption of illegality". It also discusses the more aggressive enforcement stance taken by this administration. The update further reviews the 45th annual report of HSR merger statistics from the FTC and the DOJ, providing an overview of the current state of merger enforcement. It analyzes challenges versus transactions versus second requests, M & A Safe Harbor for misconduct self-discloser and remediation timeframes, and 2024 jurisdictional thresholds under Section 8 of the Clayton Act regarding trigger prohibitions of interlocking memberships. Additionally, the FTC and DOJ merger wins in litigation and challenges from pharmaceuticals to medicine to advertising are covered as a theme we seem to be seeing in merger guidelines. The update highlights the 1996 Healthcare Policy Statement, mixed signals from the DOJ in 2023, Antitrust division leadership statements, and DOJ intermediary litigation. Additionally, the panel provides input on recent agency efforts to target pharmaceutical companies and enforce the Robinson-Patman Act across different industries.