This determination is made based on the rule of reason. Section 3 of the Clayton Antitrust Act (15 USC §14) does not require an actual foreclosure of competition; instead, exclusive arrangements can be unlawful when the “probable effect” is to foreclose substantial competition. 592 F3d at 1003 n2.

e similar deference.What Is Next?The Draft Guidelines will be subject to a 60-day comment period expiring on 18 September 2023, during which time the public may submit comments. Following the comment period, the Agencies will review the comments and then publish a final version of the Merger Guidelines.While the Draft Guidelines will not take immediate effect, they likely reflect the Agencies’ current merger enforcement objectives. Mergers reviewed by the Agencies in the coming months are likely to receive substantially similar scrutiny to that described in the Draft Guidelines. Accordingly, businesses contemplating mergers and acquisitions should expect their transactions to be evaluated pursuant to the principles and analyses described in the Draft Guidelines.1 The Agencies enforce the federal antitrust laws, specifically Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2; Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45; and Sections 3, 7, and 8 of the Clayton Act, 15 U.S.C. §§ 14, 18, 19. Section 7 of the Clayton Act is the antitrust law that most directly addresses mergers, though mergers may also violate other of the above-referenced statutes.2 A “Second Request” is a discovery procedure by which the Agencies seek additional information through document requests and interrogatories to investigate mergers that they believe have the potential to be anticompetitive.3 138 S. Ct. 2274 (2018).4 E.g., United States v. U.S. Sugar Corp., --- F.4th----, 2023 WL 4526605 (3d Cir. 2023); Fed. Trade Comm’n v. Microsoft Corp., --- F. Supp. 3d ----, 2023 WL 4443412 (N.D. Cal. July 10, 2023).

However, if an entity uses these supply agreements to impede the efforts of new firms from entering a market, smaller firms from expanding their market presence, or by tying the purchase of several items together as to result in limiting consumer choice, the entity may be subject to state and federal antitrust claims.THE BASF JURY VERDICTA federal jury in the US District Court for the District of Delaware issued a verdict on September 15, 2021, in favor of the BASF Corporation and against the Ingevity Corporation and Ingevity South Carolina, LLC (collectively, Ingevity) for committing antitrust violations under Sections 1 and 2 of the Sherman Act (15 USC §§ 1—2) and Section 3 of the Clayton Act (15 USC § 14). The jury found that Ingevity’s long-term exclusive supply agreements, which obligated fuel vapor cannister manufacturers to purchase honeycomb carbon adsorbent scrubbers exclusively from Ingevity as a means of meeting new emissions regulations, amounted to an illicit tying agreement that was designed to exclude BASF from competing in the product market and allowing Ingevity to protect its monopoly power.

“[A]s a result of J&J’s competition-reducing actions,” Pfizer alleges, “[m]ajor stakeholders at every level of the healthcare marketplace are suffering,” including consumers, government programs such as Medicare, and Pfizer. The complaint claims that these alleged actions of J&J amount to violations of Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2) and Section 3 of the Clayton Act (15 U.S.C. § 14). As a remedy, Pfizer seeks “money damages, trebled pursuant to law, in an amount in excess of $150,000.00 (exclusive of interest and costs),” litigation costs and attorneys’ fees, and other declaratory and injunctive relief.