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2021 Energy and Chemicals Antitrust Report

Antitrust activity increased significantly in 2021. This past year brought numerous changes in merger and non-merger enforcement policies and priorities that signal increased scrutiny in industry transactions. The “Biden Antitrust Revolution,” as a New Yorker article coined, promised a progressive agenda and thus far shows signs of delivering. Both the Federal Trade Commission (“FTC”) and the Department of Justice’s (“DOJ”) Antitrust Division gained new leaders in 2021. In June, Lina Khan was confirmed as Chair of the FTC, and shortly thereafter, Jonathan Kanter was confirmed to lead the DOJ’s Antitrust Division.

The merger enforcement changes the FTC and DOJ have implemented in 2021, including the suspension of the early termination program, the initiation of pre-consummation warning letters in some transactions reported under the HSR Act, expansion of the FTC’s information requests in merger reviews to include topics relating to unionization, and ESG policies are just a few of the topics discussed in Vinson & Elkins’ 2021 Energy and Chemicals Antitrust Report.

The Report touches on the aspects of the oil and gas industry that Chair Khan and the FTC are prioritizing, including the notion that national chains may “restore” higher prices through collusive practices. Additionally, concerning non-merger enforcement, the report highlight that the DOJ’s Procurement Collusion Strike Force continued to grow in 2021, and how it obtained a number of additional indictments and guilty pleas.

Private and state antitrust litigation activity in the energy and chemical sectors remained robust. The Report highlights details such as the new trend of cases focusing on retail purchasers of herbicides and other crop protection chemicals suing manufacturers, distributors, and retailers over conduct allegedly designed to raise prices by squeezing out new online distribution platforms.

To read the full report, click here.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.