Antitrust Law Source

Podcasts

Episode 57
Capper Volstead: Past, present and future – Part 3

In Part 3 of their Capper Volstead series, Jay Levine and Don Barnes discuss other statutes that exempt agricultural cooperatives from antitrust liability and delve into the historical and present relationship that USDA and DOJ have with the Capper Volstead Act.

 

Read a transcript of the episode here.

Find Jay on Twitter and LinkedIn or contact him at jlevine@porterwright.com.

Listen wherever you listen to podcasts, including: Apple Podcasts | Google Podcasts | Spotify | Amazon Music | Stitcher | Tunein Radio | iHeartRadio | Castbox

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Episode 56
Capper Volstead: Past, present and future – Part 2

In Part 2 of their Capper Volstead series, Jay Levine and Don Barnes continue to discuss the need for the Capper Volstead Act and its key elements. Specifically, the team dives in to discuss why the Act was required and preview some of the ongoing issues with its application.

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Episode 55
Capper Volstead: Past, present and future – Part 1

In a belated tribute to Capper Volstead’s 100th anniversary, Jay Levine talks with his legal partner Don Barnes, one of the deans of the agricultural bar and an authority on Capper Volstead. In Part 1 of their discussion, they review the origins of Capper Volstead and how the legal landscape for agricultural producers has changed over time. Continue Reading

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FTC issues its annual revisions to HSR and interlocking directorate

On Jan. 10, 2025, the Federal Trade Commission (FTC) announced the annual changes to the notification thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR) and certain other values under the HSR rules. The new thresholds will become effective in late February, 30 days after publication in the Federal Register.

As background, the HSR Act requires that acquisitions of voting securities or assets that exceed certain thresholds be disclosed to U.S. antitrust authorities for review before they can be completed. The “size-of-transaction threshold” requires that the transaction exceeds a certain value. Under certain circumstances, the parties involved also have to exceed “size-of-person thresholds.” This year’s thresholds, which are adjusted annually based on changes in the gross national product (GNP), will increase from 2024 thresholds, reflecting the economy’s growth from the previous year. The FTC also adjusted the safe harbor thresholds that govern interlocking directorates in competing companies.

HSR revisions

The most important change is that the minimum size-of-transaction threshold will increase from the current $119.5 million to $126.4 million. The size-of-person thresholds will increase as follows:

  • For transactions valued between $126.4 million and $505.8 million, one party to the transaction must have $25.3 million in sales or assets and the other party must have $252.9 million in sales or assets, as reported on the last regularly prepared balance sheet or income statement.
  • For transactions valued at greater than $505.8 million, no size-of-person threshold must be met to require an HSR filing.

The filing fee and their thresholds have changed, and increased, significantly. Instead of a three-tier fee structure, the FTC now moves to a six-tier structure, as follows:

Filing Fee Transaction Value
$30,000 Less than $179.4 million
$105,000 $179.4 million to less than $555.5 million
$265,000 $555.5 million to less than $1.111 billion
$425,000 $1.111 billion to less than $2.222 billion
$850,000 $2.222 billion to less than $5.555 billion
$2.39 million $5.555 billion or more

Interlocking directorates

Section 8 of the Clayton Act generally prohibits one person from serving as a director or officer of two competing corporations if two thresholds are met. One relates to the companies’ profitability, and one relates to the amount of competitive sales between the companies. The statute requires the FTC to revise these thresholds annually, also based on changes to the GNP. Effective immediately, only companies with capital, surplus and undivided profits aggregating more than $51,380,000 are covered by Section 8. A violation can be found only if the competitive sales of each company are $5,138,000 or greater. 

Civil penalties

Earlier, the FTC also announced that the maximum civil penalty for violations of many of the provisions of the FTC Act, and for violations of the HSR Act, increased from $51,744 to $53,088.

Company leaders should consider a thorough review of the latest FTC changes to HSR and interlocking directorate thresholds, and discuss revisions with their legal counsel, to ensure they will not be in violation.

For more information, contact Jay Levine at 202.778.3021 or jlevine@porterwright.com.

Has Axon dealt another blow to FTC authority?

Last year, the Supreme Court unanimously ruled that the Federal Trade Commission (FTC) is not authorized to impose civil penalties on parties who violate the FTC Act unless the party is violating a previous cease and order. The ruling took away a major enforcement tool. Now, Axon Enterprises is seeking to attack the entire structure of the FTC while it simultaneously defends its acquisition of VieVu, LLC in administrative court. Continue Reading

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