In response to a surge in merger filings, the FTC introduced changes to its mergers and acquisitions investigations, and assessments of second requests and second request negotiations.

The FTC will institute the following new process reforms:

  • an examination of the factors used to determine whether a transaction violates antitrust laws, including the effects of the transaction on (i) labor markets and across the markets and (ii) market incentives to compete;
  • a requirement mandating companies under investigation to provide certain "base-level information," including employees' business responsibilities and how the company maintains data specific to a second request, before granting a request for modification;
  • a requirement mandating companies under investigation explain how they intend to use e-discovery tools;
  • a discontinuation of the "partial privilege log" option, in favor of the full logs now required by the DOJ; and
  • the provision by FTC staff to FTC commissioners of full, secure access to second requests.

Commentary Joel Mitnick

These changes to FTC merger enforcement policy come amid a cascade of other changes. Most significantly in this action, the Commission confirms it is expanding merger analysis into the potential effects of a merger on labor markets and not merely on whether the merger may produce consumer harm. The move comes amid reports that the Commission also has begun to investigate possible effects of proposed transactions on climate and ESG policies. Despite saying that the Commission intends to make its merger reviews more "analytically rigorous," it has issued no guidance on the analytical framework it intends to employ in making these evaluations in the context of competition policy. Taken together, the Commission's recent actions are sure to lengthen merger reviews and inject uncertainty into them.

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