FTC, DOL Coordination on Antitrust Enforcement Examined by Dulani, Kearney in Law360
In August 2023, the Federal Trade Commission (FTC) and the Department of Labor (FTC) signed a memorandum of understanding (MOU) addressing labor market concentration, one-sided contract terms and issues prevalent in the gig economy. The MOU is an ongoing effort by the Biden Administration to streamline information sharing and coordinate enforcement from all federal administrative agencies to better protect America's workers.
The attorneys write that with the new pre-merger rules and merger guidelines, "the MOU underscores the paradigm shift underway with the Biden-era FTC." They detail how the MOU is likely to change the agencies' handling of labor complaints and antitrust investigations and provide insight on labor market concerns increasing the risk of both merger and conduct investigations.
"Between the two proposed rulemakings and the MOUs, FTC and DOL enforcers are about to have a lot more data at their fingertips. And that information sharing increases the risk of conduct investigations from both agencies," the attorneys write. "For example, the MOU makes it much easier for the FTC to share labor information from premerger filings with the DOL, which allows the DOL to open their own investigation. Even if the deal is blocked, the company will still need to address the DOL's inquiry."
They note that this is the "most pro-worker FTC" in a generation, with President Biden likely to continue advancing his labor agenda through the FTC and other government agencies.
"Antitrust attorneys should be preparing clients pursuing mergers in 2024 and beyond for challenges based on labor market concerns," they write. "And work closely with labor attorneys to evaluate labor complaints that could trigger conduct investigations from either the FTC or DOL."
Dulani and Kearney represent clients before the FTC and DOJ through all steps of merger clearance and antitrust merger and conduct investigations. Dulani specializes in antitrust and false claims act litigation, including multi-district class actions, and civil and criminal government investigations. Kearney specializes in pre-merger notification compliance under the Hart-Scott-Rodino Act.
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