Antitrust Law Source

FTC revises HSR and interlocking directorate thresholds

On Jan. 26, 2018, the Federal Trade Commission (FTC) announced the annual changes to the notification thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR), as well as certain other values under the HSR rules. 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 values, which are adjusted annually based on changes in the GNP, take effect on Feb. 28, 2018. 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 $80.8 million to $84.4 million. The size-of-person thresholds will also increase as follows: Continue Reading

Porter Wright presents Food & Agriculture Quarterly

Welcome to our inaugural issue of Food & Agricultural Quarterly (FAQ). This new, industry-focused publication was designed to focus on the key issues food and agriculture industry stakeholders are facing – regardless of whether you are a small, family-owned farming operation or international food producer.

In our first issue, we bring together three rather diverse articles. First, Emily Taylor describes the phenomenon of urban farming, and the challenges facing such would-be agrarians. Next, Devan Flahive provides us with an update on the USDA food labeling program as it relates to genetically-engineered products. Finally, I’ll walk you through the latest on a slew of antitrust class actions recently brought against major poultry processors.

We hope you enjoy the publication, and we urge you to send us your thoughts about topics you would like us to address in future issues!

DCMA agent requirements changing

Bob Morgan, our colleague at Technology Law Source, shares detail about the upcoming Digital Millennium Copyright Act (DCMA) agent filing change that takes effect Dec. 31.

This agent filing is a necessary element of the Digital Millennium Copyright Act (DMCA) safe harbor provision (Title II of the DMCA (the Online Copyright Infringement Liability Limitation Act)) — an Act which shields online service providers from liability for material posted by their users. If your company has an interactive website, social media presence, or message board it’s worth giving this a read:  DMCA agent requirements changing by end of year.

Is it time to change the focus of the antitrust laws? The debate is heating up

There is currently a tug-of-war going on over the heart and soul of the antitrust laws. Well, perhaps that is a bit dramatic. But it is certainly fair to say that there is surging sentiment that the antitrust laws, and specifically antitrust enforcement, should be recalibrated to address concerns that are “populist” in nature. This was particularly evident last week by the introduction of two bills by Sen. Amy Klobuchar (D-Minn.) that seek to make it easier for the antitrust agencies to challenge “undue market concentration.”

The first bill would amend Section 7 of the Clayton Act, the law that governs the antitrust legality of mergers and acquisitions, to reduce what the antitrust agencies (FTC and DOJ) must prove to a court in order to stop a proposed merger or acquisition. Presently, the agencies must prove that the merger/acquisition would “substantially” lessen competition in the relevant market. The proposed bill would replace the word “substantially” with “materially,” which is intended to mean something “more than a de minimis amount of harm to competition.” While the change may seem semantic, the intent is to reduce significantly the standard under which mergers/acquisitions are blocked. The bill would also radically change how the largest mergers/acquisitions are analyzed. Presently, there is no different standard for large or small mergers – the agencies must prove that the transaction would substantially lessen competition in the relevant market. Under the proposed bill, however, the largest mergers/acquisitions – those greater than $5 billion in value or involving a party with assets greater than $10 billion – would be presumed unlawful and the burden would be upon the merging parties to prove that the transaction did not materially lessen competition. The second bill would reduce the filing fee most parties must pay for notifying the agencies of an impending transaction (from $45,000 to $30,000) but significantly increase the fee for transactions worth $5 billion or more (from $285,000 to $2.25 million). Continue Reading