#369 Back To Form or Back to the Drawing Board? How To Navigate the Decision Vacating the New HSR Rules

Five years after the Supreme Court's AMG Capital Management decision limited the FTC's ability to seek monetary remedies under Section 13(b) of the Federal Trade Commission Act, the agency continues to look for ways to obtain money in consumer protection and privacy cases through other authorities and theories. At the same time, it is grappling with how to define and measure consumer injuries and benefits in an increasingly data driven economy, including through its February 26 workshop on "Consumer Injuries and Benefits in the Data Driven Economy." Hosts Lexi Michaud and Anora Wang talk with Laura Riposo VanDruff from Kelley Drye and Warren LLP and Mike LeGower from NERA about how the FTC is pursuing monetary relief after AMG, whether and how it might articulate clearer guidance for quantifying harm, and what companies should expect when facing privacy and data investigations by the FTC. With special guest: Laura Riposo VanDruff, Partner, Kelley Drye and Warren LLP and Mike LeGower, Director, Nera Economic Consulting Related Links: FTC's ​"Measuring Consumer Injuries and Benefits" Workshop: Key Takeaways by Kelley Drye and Warren LLP Hosted by: Lexi Michaud, Fried Frank and Anora Wang, Arnold & Porter

Hospitals, as well as insurers, have been increasingly purchasing physicians practices, home health providers, and nursing facilities. But what are the competitive implications of these acquisitions? Dr. Zack Cooper, economist and public health expert at Yale University, joins Derek Jackson and Anora Wang to discuss both the theoretical and empirical competitive harms and benefits to vertical integration in the healthcare provider market. Listen to this episode to learn more about the changing competitive landscape in this large and important sector of the economy. With special guest: Zack Cooper, Ph.D., Associate Professor of Public Health and Associate Professor of Economics, Yale University Related Links: Are Hospital Acquisitions of Physician Practices Anticompetitive? by Cooper et al., July 2025 Zack Cooper's Congressional Testimony, Fighting Obamacare Subsidy Fraud: Is the Administrative Procedure Act Working as Intended?, December 10, 2025 Zack Cooper's Senate Testimony, Consolidation and Corporate Ownership in Health Care: Trends and Impacts on Access, Quality, and Costs, June 8, 2023 Hosted by: Derek Jackson, Cohen & Gresser and Anora Wang, Arnold & Porter

M&A deals impacting the EU that are not caught by standard merger control thresholds can still be reviewed under general competition law rules. But how does this work? Frédéric Manin, lawyer at Advant Altana in Paris, joins Matthew Hall and James Hunsberger to discuss the implications of the 2023 European Court of Justice judgment in the "Towercast" case. Listen to this episode to learn more about the practical implications of this judgment for lawyers and dealmakers doing M&A that touches the EU. With special guest: Frédéric Manin, partner, Advant Altana Related Links: France Autorité de la concurrence, press release, Doctolib case (6 November 2025) France Autorité de la concurrence, press release, meat-cutting case (15 May 2024) Belgium Autorité belge de la Concurrence, press release, Proximus/EDPnet case (6 November 2023) European Court of Justice, Case C-449/21 "Towercast" (16 March 2023) Hosted by: Matthew Hall, McGuireWoods and James Hunsberger, Axinn, Veltrop & Harkrider

In February 2025, new rules for the pre-merger notification requirements in the U.S. came into effect. But will a February 2026 court decision undo these changes? Daniel Rosenthal, partner at Kirkland & Ellis, joins Jaclyn Phillips and Lexi Michaud to discuss a decision vacating the new rules, the subsequent appeal, and what might happen next. Listen to this episode to learn more about how to navigate merger filings in an uncertain time. (Since this episode was recorded, the Fifth Circuit denied the FTC's motion to stay the decision vacating the new HSR Rules.  On March 19, 2026, the Premerger Office announced that the Commission is now accepting HSR filings using the Form and Instructions that were in place before the February 10, 2025, effective date of the new rule.  As always, continue to follow the case and consult a lawyer for any legal advice.) With special guest: Daniel Rosenthal, Partner, Kirkland & Ellis Related Links: OCA #297 - HSR You Kidding Me? Unpacking the New Requirements for Merging Parties in the U.S. Hosted by: Jaclyn Phillips, Proskauer Rose and Lexi Michaud, Fried Frank

Over the last few decades, prior approval requirements were considered an extraordinary remedy in merger settlements, yet their use has fluctuated in agency enforcement across recent administrations. Where do the FTC and DOJ stand in their current practice? Bilal Sayyed, a Counsel at the Cadwalader law firm, and antitrust professor and former FTC policy leader, speaks with Anora Wang and Jeny Maier about the role of prior approval provisions in modern merger enforcement and what their recent rise—and retreat—signals about agency policy. Listen to this episode to learn how prior approval differs from traditional HSR review, when agencies have relied on such provisions, and what the evolving approach means for merging parties and future dealmaking. With special guest: Bilal Sayyed, Counsel, Cadwalader, Wickersham & Taft Related Links: 2021 FTC Statement on Use of Prior Approval Provisions in Merger Orders Bilal Sayyed, U.S. Antitrust Agency Merger Roundup & Commentary: FTC Reverses Routine Use of Prior Approval Requirements in Merger Settlements, Trump Antitrust Leadership Continues Departure from Antitrust Merger Policies of Previous Administration (July 15, 2025) Hosted by: Anora Wang, Arnold & Porter and Jeny Maier, Axinn, Veltrop & Harkrider

States have become increasingly active participants in merger enforcement, often conducting independent analyses and, at times, intervening alongside federal agencies in high-profile cases. What goes into states' analyses and decisions to intervene? Anthony Mariano, Chief of the Antitrust Division at the Massachusetts Office of the Attorney General, speaks with Lexi Michaud and Anora Wang about how states approach merger enforcement in parallel with the DOJ and FTC, the importance of independent state scrutiny, and, using the HPE–Juniper transaction to guide the discussion, how the Tunney Act promotes transparency and public interest oversight of federal settlements. With special guest: Anthony Mariano, Antitrust Division Chief, Massachusetts Office of the Attorney General Hosted by: Lexi Michaud, Fried Frank and Anora Wang, Arnold & Porter

State attorneys general are taking a more active role in merger control, with Colorado and Washington leading the way on new "mini-HSR" notification regimes. What do these new state pre-merger filing laws require, and how should companies and practitioners navigate them alongside the federal Hart-Scott-Rodino Act? Assistant Attorneys General Paula Pera Czollak and Bryn Williams join hosts Puja Patel and James Hunsberger to discuss the origins of the Uniform Antitrust Pre-Merger Notification Act, lessons from the first months of filings in Colorado and Washington, key interpretive questions practitioners are raising, and what the spread of state mini-HSRs could mean for national antitrust enforcement. Listen to this episode to learn more about how emerging state-level merger notification regimes are reshaping the U.S. antitrust landscape and what companies need to know now. With special guests: Paula Pera Czollak, Assistant Attorney General, Antitrust Division, Washington State Office of the Attorney General and Bryn Williams, First Assistant Attorney General, Colorado Attorney General's Office, Leader of Antitrust Unit Related Links: https://www.atg.wa.gov/premerger-notifications  Hosted by: James Hunsberger, Axinn, Veltrop & Harkrider and Puja Patel, Cleary Gottlieb Steen & Hamilton

China's antitrust regime has evolved rapidly over the past decade. What role does economic analysis play in the actual enforcement? Anora Wang and Kathleen Hu speak with Dr. Vanessa Zhang of Compass Lexecon about the growing role of economic analysis in Chinese competition law, drawing on her experience advising China's antitrust authority and serving as a testifying expert in high-stakes cases. The conversation explores how economic evidence is developed, evaluated, and increasingly relied upon in China's evolving antitrust regime. With special guest: Vanessa Zhang, Executive Vice President, Compass Lexecon Related Links: The Complex Geopolitics of Digital Regulation: The Three Body Problem Hosted by: Anora Wang, Arnold & Porter and Kathleen Hu, Cornerstone Research

Businesses are increasingly considering the use of generative AI for work that historically relied on human creativity, including in the area of marketing and advertising. But can ads made with gen AI really be more effective than human-created ads? Professor Vilma Todri of Emory University Goizueta Business School joins Kathleen Hu and Jaclyn Phillips to discuss her recent research on the impact of visual generative AI on advertising effectiveness. Listen to this episode to learn more about how gen AI is being used in advertising and the implications for ad effectiveness and AI disclosure policies. With special guest: Vilma Todri, Associate Professor, Goizueta Business School of Emory University Related Links: The Impact of Visual Generative AI on Advertising Effectiveness Hosted by: Kathleen Hu, Cornerstone Research and Jaclyn Phillips, Proskauer Rose

In 2006, various parties came together to form Brazil's Amazon Soy Moratorium in an effort to curb illegal deforestation in the Amazon Rainforest. Today, challenges regarding Brazil's Soy Moratorium continue to mount, with passionate advocacy from farmers, environmentalists, government agencies, and international organizations. What might seem a cut-and-dry conflict between free enterprise and environmental conservation becomes more complicated when we delve deeper. With an antitrust cartel investigation in limbo, a pseudo-private agreement to arguably higher deforestation standards than those instituted by the government, and international observers on the scene, including customers and climate activists, the facts surrounding Brazil's Soy Moratorium are ripe for unpacking. Our guest today is antitrust attorney Eduardo Frade, who joins Barry Nigro and Anora Wang to discuss Brazil's Soy Moratorium and the various antitrust and competition questions it raises. With special guest: Eduardo Frade, Partner, Mattos Filho Related Links: General Superintendence of the Administrative Council for Economic Defence (CADE) decides to adopt preventive measures to suspend the Soy Moratorium Hosted by: Barry Nigro, Fried Frank and Anora Wang, Arnold & Porter