United States of America: Introduced Prohibiting Anticompetitive Mergers Act

On 16 March 2022, the Prohibiting Anticompetitive Mergers Act is introduced both in the U.S. House of Representatives and the U.S. Senate. The bicameral Act applies to mergers which are either worth more than USD 5 billion or lead to the surpassing of certain thresholds, namely a 33% market share in any relevant market, over 25% in any labour market as an employer, over 1800 in the Herfindahl-Hirschman Index or an increase of over 100 in the Herfindahl-Hirschman Index. If passed, such mergers would be deemed illegal and could automatically be blocked by the Federal Trade Commission and the Department of Justice. To appeal such decisions in Federal Courts, the affected company would have to show that the antitrust enforcer acted in an “arbitrary or capricious” manner. Finally, the Act would allow antitrust enforcers to retroactively reverse mergers if they lead to a market share that is greater than 50% in a relevant market or would “materially harm” workers, consumers or small businesses.