Jenner & Block

Increased Scrutiny for Vertical Mergers on the Horizon

Traditionally, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) have reviewed vertical mergers with more leniency than horizontal mergers.  With the Division’s challenge of the AT&T-Time Warner deal and the FTC’s settlement decree in the Staples-Essendant merger, some wonder if the traditional approach may be undergoing a change.  The FTC’s decision earlier this year by the set of all new commissioners on the Staples-Essendant merger,[1]  reflected its first bipartisan split.  Although the majority decision emphasized the FTC’s continued commitment to mainstream antitrust policy, statements by the commissioners, especially the dissenting Democratic commissioners, indicated a possible divergence away from that policy and that vertical mergers may be facing heavier scrutiny going forward.  On April 12, 2019, in the FTC’s 13th hearing of a series of 14 on Competition and Consumer Protection in the 21st Century, FTC commissioners further opined on the benefits of heavier scrutiny, this time on both sides of the political aisle.

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