In 2017, the US Department of Justice (DOJ) brought its first challenge against a vertical merger in 40 years in its unsuccessful suit to block AT&T’s acquisition of Time Warner.
Since then, there have been a number of US investigations of vertical mergers and increased discussion as to the continued validity of the long-standing presumption that vertical mergers typically are procompetitive.
Earlier this year, the DOJ and Federal Trade Commission issued new draft vertical merger guidelines (PDF), which will replace the 2008 non-horizontal merger guidelines.
In our newest episode, podcast host Jenn Mellott is joined by partner Tom Ensign and counsel Jan Rybnicek in our Washington DC office to discuss some of the recent US investigations of vertical mergers, including AT&T/Time Warner and Staples/Essendent, and the likelihood that the US agencies will insist on structural remedies in vertical cases going forward.
Jan and Tom also discuss whether the new draft vertical merger guidelines clarify or resolve questions about how the US antitrust agencies will assess vertical mergers – and remedies in vertical cases – going forward, and whether they provide any meaningful “safe harbor” for vertical transactions where the parties’ shares are below 20 per cent.
For more information on the antitrust landscape, see Global antitrust in 2020, the 10th edition of our annual antitrust report of 10 key themes for the year ahead.