August 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.

• The U.S. Department of Justice resumes targeted “quick look” Second Requests
• The European Commission proposes targeted simplifications to the Foreign Subsidies Regulation
• Skiers bring private antitrust challenge to alleged information sharing through common pricing and data platforms
• The EU General Court rules on European Commission information-gathering powers
• The U.S. Federal Trade Commission wins court challenge blocking Henkel/A-Paint merger

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

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The U.S. Department of Justice Antitrust Division (DOJ) revives targeted “quick look” Second Requests: On July 23, the DOJ announced a return to targeted Second Request investigations and published a Model Timing Agreement that includes an optional framework for expedited consideration. The expedited process requires merging parties to produce a priority set of documents from a narrower group of custodians in exchange for earlier engagement with Division leadership and a prompt decision by the DOJ to close the investigation, narrow the scope of the Second Request, or require substantial compliance with the Second Request. The “quick look” reportedly results in a decision within roughly five weeks of production, and the Division has reportedly already used the approach in two deals this year.

Why it matters: Whether the expedited process will become a meaningful alternative to traditional Second Request compliance remains to be seen. For now, the model timing agreement applies only to DOJ reviews; although the FTC has experimented with comparable streamlined approaches in some recent investigations, it has not established a formal expedited track of its own. Merging parties often have an incentive to move aggressively toward substantial compliance rather than agree to an extended timing agreement, as substantial compliance starts the statutory clock and forces the agency to decide whether to challenge the transaction before the waiting period expires. The expedited track presents a different trade off: Parties delay substantial compliance, and thus the start of that clock, in exchange for the possibility of a narrower investigation and earlier resolution, while the Division retains discretion to require substantial compliance with the Second Request. Companies may find the expedited track most attractive for transactions raising discrete competitive questions while continuing to prepare for substantial compliance in parallel.

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Foreign Subsidies Regulation “fit for purpose” but targeted simplifications proposed: On July 14, the European Commission (EC) published its first report on the implementation and enforcement of the Foreign Subsidies Regulation (FSR). The report reveals that by May 31, 2026, the EC had (i) received over 5,150 public procurement submissions, (ii) opened two ex officio cases (concerning security screening equipment and wind turbines), and (iii) received 272 concentration notifications, of which three resulted in an in-depth investigation. The EC acknowledged widespread concerns about the burden of reporting foreign financial contributions, lengthy procedures, and uncertainty over its call-in powers.

Why it matters: The report concludes that the FSR is achieving its objective of safeguarding a level playing field in the EU and proposes no structural reforms to the FSR. Instead, to address concerns, the EC is considering targeted amendments — such as potentially increasing the EU turnover notification threshold from the current €500 million, simplified procedures, and additional reporting exemptions — with draft amendments expected in autumn 2026. Companies planning significant EU acquisitions or major tenders should continue integrating FSR considerations from an early stage. For more information, see our Sidley Update.

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Skiers sue U.S. resort operators over alleged ski-package price-fixing: On August 5, three skiers filed a proposed class action, Green et al. v. Vail Resorts Inc. et al., in Colorado federal court against Vail Resorts, Alterra Mountain Company, Boyne Resorts, Powdr Corp., ski-industry research firm RRC Associates, and the National Ski Areas Association (NSAA). The complaint alleges that the resort operators conspired to inflate and stabilize prices for ski passes, lift tickets, and other destination ski products by exchanging competitively sensitive information.

The plaintiffs allege that the operators used NSAA and RRC to share confidential revenue, cost, capacity, and supply data and discussed pricing and other sensitive topics at NSAA conventions. The complaint also alleges that the resort operators shared use of Aspenware — an Alterra-affiliated e-commerce platform with a dynamic-pricing module and standardized data-reporting fields — facilitated the alleged information exchange, and similar pricing strategies.

Why it matters: Green illustrates that scrutiny of information sharing and common pricing platforms is not limited to government enforcement. Private plaintiffs are increasingly pursuing similar theories, alleging that shared technology vendors, pricing tools, and industry associations can facilitate exchanges of competitively sensitive information. The Aspenware allegations underscore the importance of understanding what competitively sensitive data is collected by common third-party platforms, how that data is used, and whether competitors can directly or indirectly gain access to one another’s information.

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The EU General Court upholds the EC’s information-gathering powers in a merger context (Vivendi and Lagardère): On June 3, the General Court of the European Union dismissed challenges brought by Vivendi SE and Lagardère SA to binding requests for information (RFIs) that the EC issued under Article 11(3) of the EU Merger Regulation 139/2004. The RFIs formed part of an investigation into alleged “gun-jumping” (implementing a deal before it is cleared) after the EC had conditionally approved Vivendi’s acquisition of Lagardère. The RFIs covered nearly four years of messages, including from individuals’ personal devices (including from messaging applications) where those devices had been used at least once for work. The General Court held that EC information-gathering powers survive clearance decisions, reach personal devices and private messages if used at least once for work, and cannot easily be impeded by conflicting obligations or prohibitions under national law in member states. Vivendi has stated that it will appeal.

Why it matters: The twin judgments confirm the breadth of EC investigative reach in merger cases. It also reads across to the EC’s equivalent powers in antitrust investigations, FSR, and Digital Markets Act matters. Blanket challenges to such RFIs appear difficult in light of this judgment, though targeted objections to the scope of an RFI (e.g., specific custodians, search terms, or time periods) may remain available.

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FTC wins challenge to Henkel/A-Paint construction adhesives merger: On August 14, the U.S. District Court for the Southern District of New York granted a request from the Federal Trade Commission (FTC) to enjoin Henkel’s proposed $725 million acquisition of A-Paint. The FTC alleged that the transaction would combine two of the leading U.S. retail construction adhesive brands, Henkel’s Loctite and A-Paint’s Liquid Nails, and result in approximately $30 million in annual consumer harm from higher prices and reduced quality, variety, and innovation. The decision followed a seven-day trial in July. The court’s findings of fact and conclusions of law remain under seal, with proposed redactions due September 11.

Why it matters: The decision is an important reminder that the FTC continues to bring and litigate merger challenges where it sees significant competitive harm. The FTC’s complaint relied heavily on the parties’ own documents to establish that Loctite and Liquid Nails were close head-to-head competitors and demonstrate alleged harm to price competition, quality, and innovation. The court’s reasoning remains under seal, but the result demonstrates that transactions involving close competitors continue to present meaningful enforcement risk.