May 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 European Commission publishes draft revised Merger Guidelines for consultation.
• The U.S. Department of Justice and states settle competitor information exchange enforcement action against a third-party data firm.
• The Antitrust Division of the U.S. Department of Justice continues to undergo leadership changes.
• The Federal Trade Commission and the U.S. Department of Justice demonstrate ongoing focus on healthcare competition enforcement.
• The European Commission unconditionally approves the proposed consolidation of two well-established European media groups demonstrating a dynamic approach to media consolidation.

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

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European Commission publishes draft revised Merger Guidelines for consultation: On April 30, the European Commission (EC) published draft revised Merger Guidelines (Guidelines) for public consultation. Comments on the draft will be accepted until June 26, 2026.

Why it matters: The draft Guidelines represent the first major overhaul of the EC’s substantive merger guidance in more than 15 years. If adopted, it would replace the EC’s 2004 Horizontal Merger Guidelines and 2008 Non-Horizontal Merger Guidelines with a single framework for assessing mergers under the EU Merger Regulation. The legal test under the EU Merger Regulation remains the same—whether a transaction would significantly impede effective competition—but the draft Guidelines give businesses a more extensive and explicit framework for understanding how the EC intends to conduct substantive merger assessments.

Significant revisions to the draft Guidelines include the following:

• increased emphasis on dynamic competition, including innovation, investment, expansion, and potential competition, and caution against relying too heavily on static market shares in dynamic or volatile markets
• greater detail on how the EC will assess nonprice parameters of competition, and expansion of potential theories of harm for merger reviews (including effects relating to access to commercially sensitive information, portfolio effects, and buyer power in labour markets)
• a new “innovation shield” under which certain transactions involving small innovative companies, startups, or research-and-development projects with dynamic competitive potential should not, in principle, give rise to competition concerns where specified conditions are met
• the movement of merger-related benefits to a more central part of the EC’s analytical framework by inviting parties to articulate early in the review process a “theory of benefit” supported by relevant evidence (under this framework, merging parties will be able to cite “direct” transaction efficiencies (near-term cost savings and quality improvements) as well as “dynamic” efficiencies” (greater ability or incentive to innovate or invest over time); however, the established criteria for efficiencies, including that they are verifiable, merger-specific, and likely to benefit consumers, remain unchanged)

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DOJ and six states settle antitrust case against meat industry data firm Agri Stats: On May 7, the U.S. Department of Justice (DOJ) and six states filed a Proposed Final Judgment settling their antitrust case against Agri Stats, Inc., a data firm that compiles benchmarking reports for various meat processing industries. DOJ sued Agri Stats in September 2023, alleging the company facilitated the exchange between competing meat processors of sensitive business information, including costs, production volumes, and pricing, through detailed industry reports. These reports, the DOJ alleged, reduced competition and increased meat prices. Under the settlement, Agri Stats must cease publishing non-public information and can no longer report production, cost, and labor data at either the company or facility level. Instead, Agri Stats may only publish industrywide averages and aggregated statistics and must ensure that reported data is at least an average of 45 days old. The settlement also requires that Agri Stats maintain a court-appointed monitor for seven years and a mandatory compliance program until the final judgment expires after 10 years.

The proposed settlement follows earlier settlements that Agri Stats entered in related private actions alleging price fixing claims in the broiler chicken and turkey industries.

Why it matters: In February 2023, the DOJ and Federal Trade Commission (FTC) withdrew their longstanding guidance on information exchanges. This, in connection with a series of private and government cases involving benchmarking services, created significant uncertainty regarding the antitrust risks created by participating in benchmarking and information exchange programs. The proposed Agri Stats settlement and recent speeches by senior Antitrust Division leaders provide the greatest guidance on the boundaries between permissible benchmarking and unlawful information sharing while the agencies complete their ongoing process for preparing new guidelines for competitor collaborations and information exchanges.

The proposed settlement indicates that data shared among competitors through benchmarking and other information exchanges should be (i) anonymized, aggregated, and formatted in a manner that does not permit recipients to infer the identity of the contributors; (ii) at least 45 days old and potentially 90 days old, depending on the data’s potential competitive implications; and (iii) available to buyers and sellers to avoid informational asymmetries that may emerge from competitor information exchanges.

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Continued leadership changes at the DOJ Antitrust Division signal transition period: Since the departure of Assistant Attorney General Gail Slater in February 2026, the DOJ has made several changes to the Antitrust Division’s senior leadership team. In addition to the appointment of Omeed Assefi as Acting Assistant Attorney General (a position he held at the start of the second Trump administration), the DOJ has filled three Deputy Assistant Attorney General (DAAG) positions with the appointments of Charlie Beller (DAAG for Civil Mergers), Nicole Sarrine (DAAG for Civil Conduct), and Daniel Glad (Acting DAAG for Criminal Enforcement).

There have also been recent changes in the Antitrust Division’s career senior management team, which have resulted in the following appointments: Miriam (Mimi) Vishio was appointed Acting Director of Civil Enforcement; George “Chip” Nierlich III was appointed Acting Director of Litigation; Catherine Reilly was appointed Acting Chief of the Transportation, Energy, and Agriculture Section, and David Teslicko was appointed Acting Chief of the Financial Services, Fintech, and Banking Section.

Why it matters: Recent leadership changes can create uncertainty around the Antitrust Division’s enforcement direction, including the criteria, timeline ,and process for enforcement decisions. Appointments of political and career leaders may also influence how the Antitrust Division approaches investigations, including merger reviews, settlement discussions, and litigation, particularly in the near term.

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FTC and DOJ remain focused on healthcare enforcement: At the end of March, FTC chairman Andrew Ferguson issued a directive to FTC staff directing several of the agency’s offices to focus on promoting the FTC’s enforcement priorities involving the healthcare space. The Chairman instructed staff to share knowledge and resources with other agencies and stakeholders, signalling “a coherent approach to addressing consumer-protection and competition problems in the healthcare industry.” He announced that the task force would include members from the DOJ and the Department of Health and Human Services. In addition, the DOJ has brought enforcement actions involving healthcare. One such example is a lawsuit the DOJ brought against a hospital and outpatient facility provider that allegedly used anticompetitive healthcare contracts.

Why it matters: The dual announcements reflect the Trump administration’s focus on aggressive enforcement within the healthcare industry. These announcements signal to healthcare companies that the federal antitrust agencies will be scrutinizing healthcare companies and their practices.

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Recent unconditional approval of two well-known media groups demonstrates the EC’s dynamic approach to media consolidation: On April 22, the EC unconditionally approved a proposed acquisition by RTL Deutschland GmbH (RTL) of Sky German Holdings GmbH (Sky DACH). After a first-phase review, which included RTL’s offering commitments to address potential concerns in advertising markets, the EC concluded that these commitments were unnecessary and that the proposed acquisition would not raise competition concerns in the European Economic Area. In particular, the EC found that RTL and Sky DACH were not close competitors, that sufficient alternatives would remain for customers and suppliers, and that the parties faced increasing competitive pressure from global streaming platforms.

Why it matters: The decision is notable because the EC had investigated the merger during an extended Phase I timetable and determined that the parties’ proposed remedies were not necessary. The EC instead endorsed the view that the market was more dynamic with global streaming platforms constraining traditional broadcasters. It may therefore be read as cautiously supportive of scale-building by European media companies, particularly where the parties are not close competitors and market evidence shows customer switching, alternative suppliers, or likely entry, though it does not signal blanket approval for national media consolidation.