Skadden Discusses FTC and DOJ Vertical Merger Guidelines

The CLS Blue Sky Blog

Karen M. Lent Kenneth B. Schwartz David P. Wales

Karen Lent, Kenneth Schwartz, David Wales and Andrew Kabbes discuss the first official guidance update on vertical mergers from U.S. regulators in over 35 years, the Federal Trade Commission and the Department of Justice's June 2020 final Vertical Merger Guidelines. The guidance updates the January draft guidelines released for public comment and builds on the Non-Horizontal Merger Guidelines published in 1984. It also marks the first time that the agencies have jointly issued vertical merger guidance. The guidelines do not change agency practice, but provide a roadmap to current practice, focusing on primarily the unilateral effects and secondarily the coordinated effects of vertical mergers, expanding analysis of the procompetitive effects of such transactions, and eliminating safe harbor thresholds for review. Merging parties should note that the guidelines could be withdrawn following any change in the makeup of the next administration, based on strong dissenting criticism.