James A. Fishkin is a partner with Dechert in Washington, DC. He combines both government and private sector experience within his practice, which focuses on mergers and acquisitions covering a wide range of industries, including supermarket chains and other retailers, consumer and food product manufacturers, internet-based firms, chemical and industrial gas firms, and healthcare firms. He has been a key participant in several of the most significant litigated antitrust cases in the last two decades that have set important precedents, including representing Whole Foods Market, Inc. in FTC v. Whole Foods Market, Inc. and the Federal Trade Commission in FTC v. Staples, Inc. and FTC v. H.J. Heinz Co. Mr. Fishkin has also played key roles in securing unconditional clearances for many high-profile mergers, including the merger of OfficeMax/Office Depot and Monster/HotJobs, and approval for other high-profile mergers after obtaining successful settlements, including the merger of Albertsons/Safeway. He also served as the court-appointed Divestiture Trustee on behalf of the Department of Justice in the Grupo Bimbo/Sara Lee bread merger. Mr. Fishkin has been recognized by Chambers USA, The Best Lawyers in America, The Legal 500, and Benchmark Litigation for his antitrust work. Chambers USA notes that Mr. Fishkin “impresses sources with his ‘very practical perspective,’ with commentators also describing him as ‘very analytical.’” The Legal 500 states that Mr. Fishkin “possesses excellent relationships and very good business sense.” Benchmark Litigation has listed Mr. Fishkin as an antitrust “litigation star” and praised his “legal analysis, strategy, and knowledge of government entities.” Mr. Fishkin has been a speaker at industry and academic conferences, a lecturer to antitrust practitioners at CLE-approved events, and a guest law school lecturer. He has also made educational presentations to antitrust officials from the EU Merger Task Force, several European and South American countries, Japan, South Korea, Russia and the FTC.
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Key takeaways The newly enacted Merger Filing Fee Modernization Act significantly changes filing fees for HSR filings. The changes are expected to take effect in 2023; the exact date is still to be announced. Applicable HSR filing fees for many transactions valued under US$1 billion will (...)
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Key Takeaways Following a pandemic-induced decline in 2021, higher dollar thresholds in 2022 reflect renewed growth in economic activity during the past year. Annual adjustments to dollar-based HSR reporting thresholds expected to go into effect on or about February 23, 2022. Similar upward (...)
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On Jan. 18, 2022, the Federal Trade Commission and Department of Justice announced a joint initiative to conduct a comprehensive analysis of their merger guidelines. The initiative is likely to further ratchet up merger enforcement with the most significant impact on digital mergers, mergers (...)
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Key takeaways Small incremental acquisitions may require HSR filings and the HSR waiting period to be observed. Subsequent acquisitions of a small amount of the same issuer’s voting securities after the HSR requirements have been satisfied may still require additional HSR filings. Even the (...)
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The Supreme Court has ruled that the Federal Trade Commission (FTC) does not have authority under Section 13(b) of the FTC Act to seek disgorgement or restitution from defendants. The agency has increasingly relied on this authority to seek monetary penalties from defendants in antitrust (...)
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Key Takeaways Companies should anticipate waiting a full 30 days for the HSR waiting period to expire for all transactions that have recently been notified or are soon-to-be notified under the Hart-Scott-Rodino Act (“HSR Act”). It is not clear how long this suspension of Early Terminations (...)
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Key takeaways Rare decrease in filing thresholds for 2021 due to recession; first time since 2010. Annual adjustments to dollar-based HSR reporting thresholds to go into effect on or about March 4. Similar downward adjustment to thresholds for director interlocks under Section 8 of the Clayton (...)
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Key Takeaways Proposed HSR rule changes would require an acquiring fund to aggregate its holdings with those of its broader fund family. This will substantially increase the number of transactions subject to HSR reporting requirements, especially for asset managers and private equity funds. (...)
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5 Key Takeaways 1. The guidelines explain and clarify current agency practices and do not signify a policy shift at the agencies. 2. The guidelines recognize that vertical mergers often generate consumer benefits, creating a promising path for companies to secure antitrust clearance. 3. (...)
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This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On June 30, the U.S. Department of Justice and the Federal Trade Commission released final vertical merger guidelines that, for the first time, introduce the (...)
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Efforts to combat the COVID-19 pandemic or to respond to related supply shocks or other collateral consequences may give companies reason to collaborate with competitors in ways that could benefit the public, but which involve antitrust risk. In order to facilitate procompetitive (...)
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On January 27, 2020, the U.S. Federal Trade Commission ("FTC") announced in the Federal Register that the dollar-based thresholds applicable to the Hart-Scott-Rodino (“HSR”) premerger notification program will be raised about 4.4 percent from the 2019 levels. As a result, the HSR minimum (...)
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HSR Filing Threshold Increases to US$84.4 Million HSR Act or Rule Provision2018 Indexed Value US$50 million size-of-transaction test US$84.4 million US$200 million size-of-transaction test US$337.6 million US$100 million size-of-person test US$168.8 million US$10 million size-of-person (...)
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HSR Filing Threshold Increases to US$80.8 Million HSR Act or Rule Provision2017 Indexed Value US$50 million size-of-transaction test US$80.8 million US$200 million size-of-transaction test US$323.0 million US$100 million size-of-person test US$161.5 million US$10 million size-of-person (...)
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FTC Requires Divestitures in Ahold/Delhaize of 81 Stores and Gives Upfront Buyers More Time to Complete Acquisitions; Continues Focus on "Traditional Supermarket" Competition Key Points: The U.S. Federal Trade Commission (FTC) required divestitures in many local markets in Ahold/Delhaize (...)
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Pharmaceutical Antitrust - An Analysis of US and EU Law
