The FTC recently announced that it had adopted omnibus resolutions authorizing compulsory process in various antitrust investigations, including those related to non-HSR notified mergers and acquisitions. According to a recent Mintz memo on the FTC’s action, that means the FTC’s staff need only obtain the approval of a single commissioner to start an investigation into a transaction that wasn’t large enough to require an HSR filing. Previously, the staff had the ability to take such action only with respect to transactions in which an HSR filing had been made. This excerpt from the FTC’s press release summarizes the effect of its action:
The omnibus resolution governing proposed mergers, acquisitions, and transactions approved today will allow for quick investigations of all mergers, including those that fall below the value thresholds that require reporting to the antitrust agencies under the Hart-Scott-Rodino Act (HSR). The Commission’s 6(b) study on non-HSR reported acquisitions by technology companies highlighted how some of the largest firms in our economy have made hundreds of acquisitions that are not being reported to the FTC or DOJ.
Commissioners Noah Joshua Phillips and Christine Wilson dissented from the FTC’s action and issued a statement in which they contended that the omnibus resolutions removed Commission oversight from investigations within their scope and “decreased accountability and created more room for mistakes, overreach, cost overruns, and even politically-motivated decision making.”
The Mintz memo characterized the FTC’s action as giving the staff a broad “hunting license,” under which non-reportable merger investigations can be more easily initiated in response to a market participant contacting the FTC — or even in response to a media report.
— John Jenkins, DealLawyers.com, September 1, 2022