February Antitrust and Competition Bulletin: Top-of-Mind Global Antitrust Issues

Welcome to this edition of the Sidley Antitrust and Competition Bulletin — thoughts on topics that are top of mind for Sidley’s global Antitrust and Competition team and why they may matter to you.

• Federal judge issues ruling setting aside new HSR rule and form; decision paused by U.S. Court of Appeals for the Fifth Circuit, new HSR form remains in effect
• Assistant Attorney General Gail Slater is out at the U.S. Department of Justice Antitrust Division
• Federal antitrust agencies demonstrate that merger settlements remain a viable option for obtaining antitrust clearance
• Congress passes legislation allowing the DOJ to retain HSR filing fees
• DOJ issues first $1 million award under Antitrust Whistleblower Rewards Program
• Department of Defense announces direct notification requirement for certain HSR filings
• UK Competition and Markets Authority launches its first consultation on conduct requirements under new UK digital markets competition regime
• European Commission opens a new ex-officio in-depth investigation under its Foreign Subsidies Regulation

Read more on how this news can affect your business below....

Federal judge issues ruling setting aside the new HSR rule and form; new form remains in effect: On February 12, U.S. District Court Judge Jeremy D. Kernodle of the Eastern District of Texas granted summary judgment to the Chamber of Commerce of the United States and allied business groups, issuing a decision setting aside the U.S. Federal Trade Commission (FTC) 2024 Hart-Scott-Rodino (HSR) rule and premerger reporting requirements. The new HSR rule substantially increased the information many merging parties must provide when notifying antitrust enforcers of a transaction.

Judge Kernodle’s ruling found that the new HSR rule was “arbitrary and capricious” and exceeded the FTC’s statutory authority. The court reasoned that the HSR Act requires the FTC justify the costs it imposes on filing parties and that the FTC failed to demonstrate that the benefits of the new HSR rule would outweigh its costs. He ordered that the new HSR rule be set aside. The FTC filed a notice of appeal and an application for a stay of Judge Kernodle’s ruling to the U.S. Court of Appeals for the Firth Circuit. On February 19, the Fifth Circuit issued an administrative stay, putting Judge Kernodle’s decision on hold and allowing the parties to brief the FTC’s application for a stay pending appeal. That motion is expected to be fully briefed by February 26, 2026.

Why it matters: The new HSR form remains in effect while the stay is in place. These updates do not affect whether a transaction may be notifiable under the HSR Act.

Assistant Attorney General Slater announces departure from U.S. Department of Justice Antitrust Division: Also on February 12, Assistant Attorney General Gail Slater announced that she was leaving her role leading the Antitrust Division at the U.S. Department of Justice (DOJ). The current head of the Antitrust Division criminal enforcement program, Omeed A. Assefi, will temporarily lead the Antitrust Division. Assefi led the Antitrust Division for nearly two months last year while Slater awaited Senate confirmation.

Why it matters: A leadership shakeup at the DOJ could lead to different enforcement priorities and evolving areas of focus for the DOJ’s resources, including its staff.

Federal antitrust agencies demonstrate that merger settlements remain a viable option for obtaining antitrust clearance: Consistent with the federal antitrust agencies’ public statements last year signalling openness to use structural remedies to resolve competitive concerns with mergers, the DOJ and the FTC announced three merger settlements across a diverse range of sectors in January. On January 30, the FTC announced it reached an agreement allowing Sevita Health to proceed with its proposed acquisition of BrightSpring Health Services Inc.’s community living business, with divestitures of 128 intermediate care facilities. That same day, the DOJ announced it reached a proposed settlement that would require Reddy Ice to divest assets in five states in order to acquire its competitor, Arctic Glacier.

Why it matters: These recent decisions demonstrate the DOJ and the FTC’s willingness to resolve antitrust concerns through structural remedies.

Congress passes legislation allowing the DOJ to retain HSR filing fees: The DOJ can keep excess filing fees collected under the HSR Act. The Commerce, Justice, Science, and Related Agencies Fiscal Year 2026 Appropriations Bill, signed into law by President Donald Trump, permits the DOJ to retain and use HSR filing fees that exceed $245 million in fiscal year 2026. The law guarantees the DOJ $245 million in funding for the 2026 fiscal year — $12 million, or 5%, more than its 2025 fiscal year allocation. The appropriations law also provides that any HSR filing fees collected by the DOJ that exceed $245 million will be available for use by the DOJ. The U.S. Attorney General is required to submit a spending plan to the respective U.S. House of Representatives and U.S. Senate appropriations committees for any surplus amounts collected. Please review our Sidley Update for details on HSR filing fees.

Why it matters: Appropriations laws can impact enforcement speed and capacity. If deal activity is high (and the DOJ’s share of HSR fee collections exceed $245 million), the DOJ could use additional fee revenue expand investigative and litigation resources. The implications for greater resources include more potential civil and criminal enforcement as well as speedier merger review.

DOJ issues first $1 million award under Antitrust Whistleblower Rewards Program: On January 29, the DOJ Antitrust Division and the U.S. Postal Service announced the first award under the Antitrust Whistleblower Rewards Program, granting $1 million to an individual whose information led to criminal antitrust and fraud charges, a deferred prosecution agreement, and a $3.28 million criminal fine against EBLOCK Corporation in connection with a bid-rigging conspiracy. The charged conduct involved the sharing of confidential bidding information among competitors and “shill bidding” (i.e., placing artificial bids to inflate auction prices and mislead legitimate bidders) on an online wholesale used-vehicle auction platform. As discussed in a Sidley Update, the program, launched in July 2025, authorizes discretionary awards of 15% to 30% of collected criminal fines exceeding $1 million for original information concerning criminal antitrust violations that affect the U.S. Postal Service, its revenues, or its property. In EBLOCK, the DOJ cited to routine commercial use of U.S. mail in furtherance of the scheme as sufficient to satisfy the Postal Service nexus.

Why it matters: The first payout confirms that the Antitrust Whistleblower Rewards Program is operational and poised to become as additional driver of criminal antitrust investigations. The DOJ’s reliance on routine use of the U.S. mail to establish the required Postal Service nexus suggests that the program’s practical reach may extend broadly across industries. The award also increases timing pressures for companies when internal allegations arise, as financial incentives heighten the likelihood that employees, former employees, competitors, or other market participants may report directly to enforcement authorities. For a more in-depth discussion, please see our recent Sidley Update.

Pentagon requires parties to proactively notify certain HSR-reportable transactions: On February 2, the Department of Defense (Pentagon) published guidance for parties filing HSR to proactively notify the Pentagon of forthcoming or submitted HSR filings. Section 857 of the National Defense Authorization Act, which was enacted in late 2023, requires parties to notify the Pentagon about HSR-reportable transactions that affect the defense industry. The new Pentagon webpage establishes a clear notification mechanism and outlines the criteria for a reportable transaction, covering transactions involving defense-directed businesses, the Defense Industrial Base sectors and related intellectual property, or designated critical technologies vital to U.S. national security. The guidance defines those critical technologies as applied artificial intelligence, biomanufacturing, contested logistics technologies, quantum and battlefield information dominance, scaled hypersonics, and scaled directed energy.

Why it matters: The Pentagon’s guidance directs transacting parties with potential defense or national security implications to submit their HSR filings directly to the Pentagon. Parties should determine early whether a transaction could trigger Pentagon notification requirements and incorporate this assessment into their HSR filing preparation.

CMA consults on its first package of conduct requirements on SMS firms: Under the Digital Markets Competition and Consumers Act 2024 (see Sidley update here), the UK Competition and Markets Authority (CMA) is able to impose targeted conduct requirements on firms with “strategic market status” (SMS) in the UK, that is, firms with “substantial and entrenched market power and a position of strategic significance in a digital activity.”

The CMA recently launched a consultation on proposed conduct requirements on Google’s search services ecosystem that include the following:

• Google should allow publishers to opt out of their content’s being used for Google’s AI-generated summaries. This addresses concerns that traffic to publishers and content creators is being reduced by conditioning appearance in search results on consent for their content to be harvested for Google AI summaries.
• To address concerns over Google’s self-preferencing of its own products and services in search results, the CMA proposed that Google provide stakeholders at least 30 days’ notice of changes to its systems and policies.
• To ensure that alternatives for default search engines are displayed with sufficient prominence, the CMA proposed changes to the user interface to ensure that mobile and web users are given clear, genuine, and user-friendly options.
• To address Google’s perceived control over user and advertiser data reducing users’ and businesses’ ability to leave its ecosystem, the CMA has proposed facilitating the easy export of data and interoperability to address this concern.

Why it matters: This is the CMA’s first deployment of its powers to impose conduct requirements on an SMS firm. Although the proposed conduct requirements in the current consultation appear comprehensive, several stakeholders previously advocated for more drastic structural changes to address Google’s dominance when responding to the CMA’s prior consultation with respect to designating Google as having SMS in general search and search advertising services.

European Commission opens ex officio in-depth FSR investigation into Goldwind: On February 3, the European Commission (EC) opened an ex officio in-depth investigation under the EU Foreign Subsidies Regulation (FSR) into Goldwind Science & Technology Co., Ltd.’s activities in the EU wind sector (including wind turbine manufacturing and sales and related services). The EC’s preliminary concerns relate to potential foreign subsidies (including grants, preferential tax measures, and preferential financing such as loans) that may have improved Goldwind’s competitive position and distorted competition in the EU internal market. The investigation follows an ex officio preliminary inquiry launched in April 2024, including requests for information sent to companies active in the EU wind sector.

Why it matters: This is the second ex officio in-depth investigation opened under the FSR, following the EC’s first ex officio in-depth investigation announced in December 2025 (Nuctech). Together, the two cases underline the EC’s willingness to deploy the FSR’s ex officio toolbox and to scrutinize foreign financial contributions in sectors considered strategically important for Europe. For further information on how the EC is approaching key substantive and procedural concepts under the FSR, see our Sidley Update on the EC’s recently published Guidelines on the application of the FSR.