Cartel Enforcement

  • Amazon Marketplace Sellers Pleaded Guilty to Price Fixing. On January 6, 2022, three individuals pleaded guilty to fixing the prices of DVDs and Blu-ray Discs sold on Amazon Marketplace. The alleged conspiracy began at least in November 2017 and continued until October 2019. Assistant Attorney General Jonathan Kanter noted that “it is critically important to deter, detect and prosecute crimes that prevent fair and open competition in online marketplaces.”

  • DOJ Left With Hung Jury in Poultry Price Fixing Prosecution. On December 16, 2021, a federal judge in Denver declared a mistrial after the jury failed to reach a verdict on whether 10 current and former poultry manufacturer executives engaged in unlawful price fixing and bid rigging. A retrial has been set for February 2022. The Department of Justice’s (DOJ) indictment was the culmination of a years-long investigation into the $95 billion chicken industry. The failure to obtain a verdict is a setback for DOJ, with meat prices being a policy priority for the Administration.

Agency Updates

  • Bedoya Renominated to Open FTC Commissioner Seat. On January 4, 2022, President Biden sent back to the Senate Alvaro Bedoya’s nomination to the Federal Trade Commission (FTC) after his original nomination expired at the end of the first session of the 117th Congress under Senate rules. The Senate Commerce Committee previously failed to report the nomination favorably, with a tie 14-14 vote on December 10, split along party lines.

  • DOJ and Department of Agriculture Issued Shared Principles and Commitments Regarding Promoting Competition in Agriculture. On January 3, 2022, Attorney General Merrick Garland and Secretary of Agriculture Tom Vilsack announced a shared commitment to “effectively enforcing federal competition laws that protect farmers, ranchers, and other agricultural producers and growers from unfair and anticompetitive practices.” The agencies promised to jointly develop within 30 days a centralized, accessible, and confidential process for submitting complaints about potential violations of the antitrust laws and the Packers and Stockyards Act. They also committed to increased information sharing and reporting between the agencies to facilitate case cooperation.

  • FTC Announced Two Settlements for Failure to Make HSR Filings.

    • On December 22, 2021, the FTC announced that Biglari Holdings Inc. will pay a $1.4 million civil penalty to settle charges that two March 2020 acquisitions of shares of Cracker Barrel Old Country Store, Inc., violated the Hart-Scott-Rodino (HSR) Act. According to the complaint, these two acquisitions, aggregated with Biglari’s prior holdings of Cracker Barrel, exceeded an HSR filing threshold. Biglari made a corrective filing in June 2020 after the FTC contacted the company and asked why no filing had been made.

    • Also on December 22, the FTC announced that Clarence Werner, a founder and former director of Werner Enterprises, Inc., agreed to pay a $486,900 civil penalty to settle charges that certain acquisitions of company stock while he was a director of the company violated the HSR Act, including several open-market acquisitions. According to the complaint, Mr. Werner made additional acquisitions of company stock after notifying the FTC that he was in violation of the HSR Act and before making a corrective HSR filing.

  • DOJ Opened Comments on Bank Merger Review. The DOJ’s Antitrust Division announced on December 17, 2021, that it is seeking additional public comments on whether and how the division should revise the 1995 Bank Merger Competitive Review Guidelines. Building on responses received during its September 2020 call for public comments, DOJ is focused on whether the methods and substantive theories for merger reviews described in the guidelines are sufficient to prevent potentially harmful mergers. The comment period expires on February 15, 2022.

Europe

  • German Competition Enforcement Agency Issued First Decision Under New Abuse Control Provision. On January 5, 2022, Germany’s Federal Cartel Office (FCO) issued a decision under its extended abuse control provisions that were introduced in January 2021. Under these provisions, the FCO can prohibit companies that are found to have “paramount significance for competition across markets” from engaging in certain practices, without finding a “traditional” abuse of dominance. In its first decision, the FCO found that Google/Alphabet is of paramount significance for competition across markets, which means that the company will be subject to the specific abuse control regime for the next five years. Google has announced it will not appeal the decision.

  • Germany and Austria Updated Joint Guidelines on Transaction Value Thresholds. Effective January 1, 2022, the German and Austrian competition agencies updated their joint guidelines concerning transaction value thresholds for merger control. The guidelines describe how to assess “substantial domestic operations,” particularly for digital and pharmaceutical industries. Under the current rules, transactions that are below the traditional turnover thresholds may still be notifiable if the value of the transaction exceeds EUR 400 million (Germany) or EUR 200 million (Austria). This alternative threshold intends to capture transactions where the target does not yet have a high domestic turnover but has significant potential to affect competition. The updated guidelines account for the recent changes to the German Cartel Act and Austrian Cartel Act as well as recent case law since the publication of earlier guidelines in mid-2018.