2019 Energy and Chemicals Antitrust Report
The U.S. antitrust agencies remain active in reviewing mergers and acquisitions; however, there was a slight reduction in the number of energy and chemical transactions reported to the agencies last year, with a corresponding reduction in the number of transactions investigated. The DOJ brought no energy or chemical merger enforcement actions in 2019, while the FTC secured divestitures in three cases and also successfully challenged a non-compete agreement between two natural gas pipeline companies, signaling that non-competes ancillary to transactions may be a future focus area for the FTC.
In 2019, the DOJ announced an important policy shift regarding consideration of and mitigation credit for corporate antitrust programs and released inaugural guidance for the assessment of corporate compliance programs in criminal antitrust investigations. In addition, the DOJ’s Antitrust Division announced a new “strike force” to target collusion in public procurement activities. Both agencies indicated plans to issue updated guidance materials, such as how the agencies examine vertical mergers, in the coming year.
The rate of private antitrust litigation in the U.S. energy and chemicals industries continues to be robust. Most notably, plaintiffs brought a significant new series of cases in 2019 alleging price fixing in the sale of caustic soda. Long-running cases involving wholesale natural gas and liquid aluminum sulfate concluded with eight-figure settlements. And at least 35 individual suits have been brought alleging price-fixing involving rail freight fuel surcharges after the plaintiffs failed to get a class certified. No reported case involving the energy or chemicals industries was dismissed for plaintiffs’ failure to adequately allege facts supporting a conspiracy. Defendants did, however, obtain dismissal of several prominent cases under the filed rate doctrine, antitrust standing rules, and the statute of limitations.
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