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Karen Hoffman Lent and Kenneth Schwartz Karen Hoffman Lent and Kenneth Schwartz

Last month, outgoing Federal Trade Commission (FTC) Bureau of Competition Director Bruce Hoffman stated that the Commission remains focused on reconsidering responses to past transactions, and is assessing the potential of retrospective merger enforcement. See Competition in Digital Technology Markets: Examining Acquisitions of Nascent or Potential Competitors by Digital Platforms: Hearing Before the Subcommittee on Antitrust, Competition Policy and Consumer Rights, 116th Cong. (2019). Enforcement-focused merger reconsideration has re-emerged as a talking point both within the FTC and in the broader public discourse, particularly in the technology sector. In February, the FTC created a task force charged with, among other things, the investigation of past technology sector mergers and consideration of enforcement actions to unwind those transactions. Additionally, in April, the FTC discussed merger retrospectives at length, noting the need for more formal review processes of past mergers. While the FTC has taken steps to unwind smaller, nonreportable mergers, it has yet to publicly take any concrete steps towards action to unwind the larger consummated mergers that were the subject of these discussions.

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