The Antitrust Attorney Blog

Can You Sue Over a Paid Influencer’s Posts? False Advertising on Social Media

September 4, 2026 | Luke Hasskamp

Your competitor’s product is suddenly everywhere on social media. Influencers you have never heard of call it cheaper and better than yours. Some of the posts are tagged as sponsored, and some are not. It looks like genuine enthusiasm, but it may be your competitor’s advertising campaign instead. Can you do anything about it?

Potentially, yes. Paid influencer posts can qualify as commercial advertising, and a false factual claim made through an influencer campaign can support a Lanham Act claim the same way a false statement in a traditional advertisement can. A separate question arises when the only alleged problem is that the influencer did not disclose the sponsorship, which usually is not enough by itself to support a Lanham Act claim.

Courts are taking influencer campaigns seriously

In early 2026, a district court refused to dismiss a plaintiff’s false-advertising claim against Temu based on statements Temu’s paid influencers made. Roadget Business Pte. Ltd. v. PDD Holdings Inc., 2026 WL 44864 (D.D.C. Jan. 7, 2026). Shein alleged Temu gave influencers guidelines requiring them to post that Temu’s products were “cheaper” and of “way better quality” than Shein’s, which they did. Several influencers identified their “paid partnership” with Temu. According to the court, the allegations tied the influencers to Temu closely enough to treat the posts as Temu’s own advertising, and that the comparative price and quality claims could be considered objective facts.

This clearly suggests that a paid influencer post is not beyond the reach of false-advertising law, and even a disclosed sponsorship does not protect a false factual claim.

When is an influencer’s post more than an opinion?

The Lanham Act is mostly likely to be implicated when a social media post makes an objective claim, one that can be proven true or false.

Payment can convert a post into advertising, but it does not turn every opinion into an objective statement of fact. An influencer can say “I love this” or “this is my favorite,” even when paid, and a genuinely subjective view stays protected opinion.

In the Temu case, the court allowed claims built on statements that Temu’s products were “cheaper” and of “way better quality,” because in context consumers could reasonably consider those to be factual comparisons. The influencers’ disclosed sponsorship did not save the allegedly false claims, because the wrong the law reaches is the false factual message, not the fact of payment.

The Ninth Circuit made a related observation in the Ariix case (which you can read about here), noting that paid influencer posts can be advertisements even though they do not look like conventional ads. See Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1116 (9th Cir. 2021). That was an illustration in the court’s commercial-speech analysis, but Ariix itself involved a rigged ratings guide, not an influencer.

Important Disclosure: Bona Law represented Ariix (the winning party) in the Ninth Circuit and in the district court below.

A missing “#ad” usually is not enough by itself

Failing to disclose that a post was paid for is generally not, on its own, something a competitor can sue over under the Lanham Act, because the Act imposes no freestanding duty to disclose.

Consider an affiliate product reviewer. In one case, a mattress reviewer disclosed his affiliate relationships, and the court held that his subjective assessments stayed his own opinions even though referral payments may have shaped them. Casper Sleep, Inc. v. Hales, 2016 WL 6561386 (S.D.N.Y. Oct. 20, 2016). As the court put it, a “kickback does not make his thoughts any less his own.” But the same reviewer’s factual assertions that no review was “paid for” or “influenced by any manufacturer” were verifiable claims alleged to be false, and those stated a claim. The viability of the claim turns on the factual representations that turn out to be false, not simply in the payment or the failure to disclose it.

Can you go after the brand, not just the influencer?

Influencers themselves are potentially liable for false advertising claims, though the brand is usually the better target.

For brands, ordinary business relationship with someone who posts about their product is likely not to raise any Lanham Act eyebrows. It’s when a company hires influencers and directs them to make the false statements that courts are more likely to treat the posts as the company’s own advertising. That is what is alleged to have happened in the Temu case. It is safe to say that it takes more than an ordinary business relationship. The company that paid for and directed the campaign is plainly selling its own product, which usually makes it the better defendant.

Some courts also recognize contributory false-advertising liability, where a defendant knowingly induces or materially participates in another’s false advertising. The Eleventh Circuit did so in Duty Free Americas, Inc. v. Estee Lauder Cos., 797 F.3d 1248 (11th Cir. 2015), though not every circuit has addressed the question.

Should you sue the influencer personally?

Influencers almost always promote someone else’s product. This raises a wrinkle.

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When Two Foreign Companies Merge, Do They Have to File in the United States? A Practical Guide to the HSR Foreign-to-Foreign Exemptions

September 3, 2026 | Steve Cernak, Luis Blanquez and Kristen Harris

Authors: Steve Cernak, Luis Blanquez and Kristen Harris

Two companies in Germany agree to a deal. One buys the other. Both are incorporated in Germany, run from Germany, selling mostly to European customers. No one in the boardroom is thinking about Washington. Then someone asks the question that stops the meeting: before we can close, do we have to file with the U.S. antitrust agencies?

The answer is usually no. But “usually” is not “always,” and getting it wrong is expensive. A missed Hart Scott Rodino filing carries civil penalties that now exceed $50,000 per day, and the agencies have collected them from foreign parties who assumed a foreign deal was none of their concern.

Why a deal between two foreign companies reaches U.S. law at all

The Hart Scott Rodino Antitrust Improvements Act requires parties to notify the Federal Trade Commission and the Department of Justice before closing certain mergers and acquisitions, then wait out a review period. Nothing in the statute says the buyer or the seller must be American. What matters is whether the deal is large enough and connected enough to U.S. commerce to warrant a look.

A few points decide that.

The first is the transaction size. For 2026, HSR reaches a transaction only if it is valued above $133.9 million. That figure adjusts every year, and the current version took effect February 17, 2026. If your deal sits below it, you stop here. There is no filing, and the rest of this article is background reading.
Party size matters too. For a deal valued between $133.9 million and $535.5 million, there is no filing unless one side also has at least $267.8 million and the other at least $26.8 million in total assets or annual net sales. Above $535.5 million, party size stops mattering and the deal is reportable unless an exemption applies.
The second point is where foreign parties get comfortable too quickly. Once a deal clears the size threshold, the default assumption is that it must be reported. But for deals with little real U.S. footprint, the FTC built a set of exemptions precisely so that a Germany to Germany transaction with modest U.S. activity does not clog the U.S. review system. Those are the foreign-to-foreign exemptions, and they live in the FTC’s rules at 16 C.F.R. 802.50, 802.51, and 802.52.

The two measurements that decide everything

The first is sales in or into the United States. This is broader than it sounds. It captures not only what the target sells from U.S. operations but also what it exports into the United States from abroad. A German manufacturer with no U.S. office but real American customers has U.S. sales for this purpose.

The second is assets located in the United States: plants, inventory, equipment, and similar property physically in the country.

So, almost every foreign-to-foreign question comes down to measuring the target’s U.S. sales and U.S. assets in the country.

The exemptions, in plain terms

Stock deals: acquiring voting securities of a foreign issuer (802.51)

When the target is a foreign company and the buyer acquires its shares, the analysis depends on who is buying.

If the buyer is a U.S. person, the deal is exempt unless the foreign target holds U.S. assets worth more than $133.9 million or made sales in or into the United States above $133.9 million in its most recent fiscal year.

If the buyer is also foreign, as in our German example, the test is harder to trip. The deal is exempt unless two things are both true: the acquisition gives the buyer control of the target, and the target holds U.S. assets above $133.9 million or made U.S. sales above $133.9 million. A foreign buyer taking a non-controlling stake in a foreign target is generally outside HSR regardless of the target’s U.S. numbers.

Asset deals: acquiring foreign assets (802.50)

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The Reach of Ariix v. NutriSearch: When Rigged “Independent” Reviews Can Become Actionable Under the Lanham Act for False Advertising

August 24, 2026 | Luke Hasskamp

Author: Luke Hasskamp

Many modern buyers are skeptical of conventional advertising, so they look for something that seems more independent. They read reviews, check star ratings, and search for the guide, ranking, or “best of” list that promises an assessment free of the seller’s influence. That perceived independence is what makes a rigged review valuable to the company that pays for it, and damaging to the competitor it buries.

In Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021), the Ninth Circuit confronted that problem. Bona Law represented Ariix and persuaded the court that a supposedly independent ratings guide, allegedly rigged in exchange for compensation, could be commercial speech and could contain actionable misstatements of fact under the Lanham Act. The court reversed a dismissal, holding that Ariix had plausibly alleged commercial speech, actionable factual statements, and sufficient dissemination. It expressly left for remand whether the guide was “commercial advertising or promotion” of the defendants’ goods.

This article traces what Ariix decided and what it reserved, along with the questions that decide these cases: what makes a purported review commercial speech, which statements are fact rather than opinion, whose goods the speech promotes, and whether the deception caused a cognizable commercial injury.

What the Ninth Circuit Decided in Ariix

Ariix and Usana competed in the nutritional-supplement market. Our client, Ariix, alleged that NutriSearch’s supposedly independent Guide systematically favored Usana and disadvantaged Ariix in exchange for hundreds of thousands of dollars in speaking and other fees and a hidden marketing arrangement. At the same time, the Guide portrayed itself as a neutral evaluator applying objective scientific criteria and expressly disclaimed any affiliation with the manufacturers it reviewed.

The district court dismissed the complaint with prejudice. It treated consumer product reviews as outside the Lanham Act even when biased or tainted by favoritism. The court concluded the alleged financial relationship did not make the Guide commercial speech, and held that the challenged statements were nonactionable opinion.

The Ninth Circuit reversed. It held that Ariix had plausibly alleged the Guide was “more like a sophisticated marketing sham rather than a product review guide,” and therefore commercial speech, and that Ariix had plausibly alleged actionable factual misrepresentations and sufficient dissemination. The court described the stakes in consumer terms: “when someone falsely claims to be independent, rigs the ratings in exchange for compensation, and then profits from that perceived objectivity,” the speaker has “drowned the public trust for economic gain.” But the court stopped short of holding that Ariix had satisfied every element. It expressly left the “defendant’s goods or services” question, which lies at the heart of “commercial advertising or promotion,” for the district court to decide on remand.

The Commercial-Speech Threshold

The first question in a disguised-review case under the Lanham Act is often whether the challenged speech is commercial at all. Genuine editorial, scientific, and consumer commentary receives substantial First Amendment protection. Commercial speech receives less, and a false or misleading commercial claim clears the first step toward Lanham Act liability. It is only the first step. Commercial speech is not automatically “commercial advertising or promotion,” a separate requirement addressed below.

Ariix applied the familiar factors from Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983): (i) whether the speech is an advertisement; (ii) whether it refers to a specific product; and (iii) whether the speaker has an economic motivation. Those factors are guideposts, not a rigid checklist, and a profit motive alone does not make speech commercial. What mattered in Ariix was the alleged hidden economic arrangement. Commercial motivation need not take the form of a direct sale to the audience, and an indirect financial benefit can count when economic gain is plausibly the primary purpose of the speech. Ariix alleged more than a publisher hoping to sell books. It alleged a concealed marketing arrangement in which the reviewers were paid substantial sums while shaping the Guide to favor Usana.

That reasoning reaches beyond nutritional supplements. Whenever a speaker presents itself as an independent evaluator while taking economic benefits tied to the products it evaluates, Ariix supplies a framework for asking whether ostensibly editorial speech has become commercial.

What Is Actionable, and What Is Just Opinion

A crucial limit runs through Ariix: an evaluative rating is ordinarily opinion, not fact. The Guide’s five-star ratings remained nonactionable even though the author described the methodology as objective and scientific, because selecting and weighting the criteria required subjective judgment. A plaintiff cannot turn a subjective score into a factual representation merely by labeling the methodology “objective.”

The actionable statements lay elsewhere. First, the Guide’s express claim that it was “not associated with any manufacturer” was a representation about itself, capable of being proven true or false. Second, the “Medal of Achievement” certification rested on defined, pass-or-fail criteria, including compliance with specified manufacturing practices and laboratory verification of label claims. Ariix alleged that withholding the medal from a qualifying product falsely implied those objective criteria had not been met, an implication the court found “specific, measurable, and capable of being falsified.”

The Ninth Circuit applied the same fact-versus-opinion principle two years later in Enigma Software Group USA, LLC v. Malwarebytes, Inc., 69 F.4th 665 (9th Cir. 2023). Looking to the totality of the circumstances, the court held that an anti-malware company’s designations of a competitor’s software as “malicious” and a “threat” conveyed verifiable factual assertions in that technical context. Drawing directly on Ariix, the court explained that such a designation “can be reduced to a binary determination based on falsifiable criteria,” and so was actionable rather than mere opinion.

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Google Play Antitrust US Settlement vs. the EU’s €4.1 Billion Fine: Litigation or Regulation—Which Actually Stops a Monopoly?

August 21, 2026 | Luis Blanquez

Author: Luis Blanquez

Google just paid $700 million in the US to close the domestic front of a war it has already lost twice. This month, the court gave final approval to the settlement resolving the antitrust claims brought by a bipartisan coalition of states, together with a nationwide class of Android users. Judge James Donato of the Northern District of California signaled his approval at an April 2026 hearing, and payments to eligible consumers follow from there.

The number is large, but the shadow of the precedent behind it is even larger. Weeks earlier, the European Court of Justice put the final seal on a €4.1 billion fine for the same company, over the same operating system, and for conduct similar to what the states alleged here. Two legal systems, two very different jurisdictional machines, one defendant—and a question that should interest every company with a platform and a dominant position: which machine really changes a monopoly’s behavior?

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A $12 Million Lesson in HSR Rule 801.90: Purpose is the Whole Ballgame

July 29, 2026 | Steve Cernak, Luis Blanquez and Kristen Harris

Authors: Steve Cernak, Luis Blanquez, and Kristen Harris

The largest penalty in the history of the Hart-Scott-Rodino Act did not come from a botched filing. It came from a deal the parties chose not to file for at all. On July 13, 2026, the FTC announced a $12 million settlement with Edwards Lifesciences and Genesis MedTech over Edwards’ 2024 acquisition of JC Medical. Edwards pays $10 million, Genesis pays $2 million, and Edwards accepts prior notice obligations and a five-year antitrust compliance program. The defendants admit no wrongdoing.

The rule at the center of the case, 16 C.F.R. § 801.90, is short and rarely litigated. It deserves a closer look, because the facts here show how it works and how a violation gets discovered.

The Facts

On July 22, 2024, Edwards agreed to buy JC Medical from Genesis for $115 million plus roughly $1.8 million in milestone payments. That price sat just under the HSR size of transaction threshold, which was $119.5 million at the time. Edwards closed the same day, filed no HSR notification, observed no waiting period, and did not announce the deal.

Two weeks later, on August 9, 2024, Edwards paid Genesis another $25 million for non-voting shares in Genesis itself. If one must add the $25 million to the $115 million, the combination would cross the HSR threshold.

JC Medical mattered to Edwards because it was conducting clinical trials for TAVR-AR, a promising transcatheter aortic valve replacement treatment for severe aortic regurgitation. The day after closing the JC Medical deal, Edwards signed an agreement to buy JenaValve, allegedly JC Medical’s only serious U.S. competitor in TAVR-AR trials. Edwards seemed to be trying to control both companies developing the technology.

How HSR Rule 801.90 Works

The HSR Act requires parties to a deal above the applicable threshold to notify the FTC and the Department of Justice, and then wait before closing. The waiting period gives the agencies time to review the proposed transaction for substantive antitrust concerns.

Rule 801.90 stops parties from drafting their way around that duty. Any transaction or device “entered into or employed for the purpose of avoiding” HSR gets disregarded, and the filing question is answered by looking at the substance of the deal instead of its form. The operative word is purpose. The rule does not punish a below threshold price or a contemporaneous side investment on its own. It punishes structure chosen simply to dodge the filing. A party with a real, independent business reason for the same structure has a defense that goes to the heart of the rule.

The FTC’s theory was that the $25 million investment was extra compensation for JC Medical dressed up as something else. The complaint points to the evidence the agency says proves purpose: first, an April 2024 email transmitting two term sheets that described the JC Medical purchase and the Genesis investment as a single transaction, with the investment timed to close alongside the acquisition; and, second, internal documents and testimony treating the investment as “within the deal structure.” The sharpest line came from Edwards itself, which told JenaValve there was no HSR review on the JC Medical deal because it was “below the threshold! Intentional.” Because the parties chose to settle, we do not know what their defense might have been.

Why the Agency Found Out

HSR avoidance is hard to detect precisely because there is no filing to review. So how did this surface?

Edwards tried to buy both companies in what is supposedly a two-company market. That drew an FTC challenge to the JenaValve deal, which the agency blocked in January 2026 after a six-day hearing and a preliminary injunction. The investigation into the second deal turned up documents about the first. Once staff had emails and testimony describing the JC Medical structure and its purpose, the 801.90 case wrote itself.

Put differently, a below threshold price and a side investment might never have drawn a second look on their own. What drew the look was a buyer trying to buy two rivals in a concentrated market, and a paper trail that used the word “intentional.”

Five Ways to Avoid the HSR Rule 801.90 Problem

The takeaway is not that side investments or below threshold pricing are off limits. It is that structure and documents must line up with a real business purpose. Below are five easy practical steps companies can take with their antitrust counsel to avoid getting into the same situation:

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The Tether Class Certification Is a Warning Label for Crypto Defendants in Antitrust Cases

July 27, 2026 | Luis Blanquez

Author: Luis Blanquez

A federal judge in New York recently certified two classes of cryptocurrency buyers against Tether and Bitfinex. If you issue a stablecoin, run an exchange, or make markets in digital assets, that sentence should get your attention. The case, In re Tether and Bitfinex Crypto Asset Litigation, has been running since 2019, and the plaintiffs say the defendants inflated crypto prices by hundreds of billions of dollars. In February 2026, the court said those buyers can sue as a class. In July, the Second Circuit upheld that ruling.

Class certification is the moment a manageable lawsuit becomes an existential one. Before certification, a defendant faces a handful of named plaintiffs and their individual losses. After it, the defendant faces the aggregated claims of everyone who bought in the market during the class period. The dollars change by orders of magnitude, and so does the pressure to settle. That asymmetry is the whole game in class litigation, and it is why the certification order is often the fight that decides the value of the case.

Here, the certification order is actually more useful to defendants than the headline suggests. The plaintiffs got their class, but the court excluded a key piece of their expert analysis, cut both classes down, and set aside the central causation question for a later summary judgment fight.

Before we discuss this in more detail, you should download our Antitrust Guidelines for Companies Using Blockchain Technology.

The Complaint: A Manipulation Theory Built on a Stablecoin

The operative pleading is the Amended Consolidated Class Action Complaint, filed in June 2020.

Tether issues USDT, a stablecoin it marketed as backed one-to-one by U.S. dollars held in reserve and redeemable on demand. The plaintiffs allege that was a lie—that Tether created USDT out of thin air, without the dollars to back it, and moved the unbacked coins to its affiliated exchange, Bitfinex, without paying for them.

Through an anonymous trader, the defendants allegedly used the debased USDT to make large, well-timed purchases of Bitcoin and other crypto commodities precisely when prices were falling. The market read those purchases as real demand and stopped the slide, which let the defendants convert coins they had created for free into assets with genuine value. The complaint ties the scheme to the 2017 run-up—Bitcoin climbing from roughly $800 to $20,000 in a year—and to the roughly $450 billion in value that evaporated when the bubble burst in 2018. Plaintiffs pleaded claims under the Sherman Act, the Commodity Exchange Act, RICO, common law fraud, and New York’s consumer protection statute.

The lesson in the complaint is that the plaintiffs anchored an ambitious economic theory to concrete, provable conduct: specific issuances of USDT, specific representations about reserves, and specific trades. Regulators had already questioned Tether’s reserve claims. All that together provided the complaint with teeth, which is exactly what most crypto complaints lack and exactly what let this one survive.

The Motion to Dismiss: The Theory Narrows to Antitrust and Commodities

In September 2021, the court granted the motion to dismiss in part and denied it in part.

The court threw out the RICO claims, holding that the causal chain between the alleged racketeering and the plaintiffs’ losses was too indirect to satisfy proximate cause. It dismissed the conspiracy to monopolize count and the New York General Business Law claim.

What survived was the core: monopolization and attempted monopolization under Section 2 of the Sherman Act, the restraint of trade claim under Section 1, and market manipulation and aiding and abetting under the Commodity Exchange Act.

For defendants, the motion to dismiss ruling hides a warning: The claims that fell were the ones that depended on long, attenuated causal chains or strained standing theories. The claims that stuck were the ones tied most directly to the alleged conduct and its market effect. Defendants who treat the motion to dismiss as their last, best chance to end the case tend to be disappointed—the leverage often arrives later, at certification and summary judgment.

Class certification: Only a Partial Win for Plaintiffs

For certification, the plaintiffs relied on an economic expert who offered three analyses: (i) an event study meant to show that USDT issuance caused Bitcoin’s price to rise; (ii) a regression model linking changes in the outstanding volume of USDT to Bitcoin prices; and (iii) an overcharge model quantifying the inflation. The defendants moved to exclude the expert and opposed certification only on adequacy and predominance.

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Antitrust HSR Update: What the 55 Comments Tell Us About the Next Form

July 1, 2026 | Steve Cernak, Luis Blanquez and Kristen Harris

Authors: Steve Cernak, Luis Blanquez, and Kristen Harris

The comment period on the FTC and DOJ’s request for information on the HSR premerger notification form closed May 26, 2026, with 55 comments on the docket (FTC-2026-0298). That’s a small number for a rule that governs every reportable deal in the country, but many of the filers are the ones who matter: state enforcers, a trade association that sued and won, industry groups with something concrete to lose, and the practitioners who fill out these forms for a living.

For the back story — the February 12 vacatur in the Eastern District of Texas, the Fifth Circuit’s denial of a stay, and the order holding the appeal in abeyance through December 31 — see our earlier posts, HSR in Turmoil and Old, Shorter Form Likely in Use Through At Least 2026. The agencies aim to issue a notice of proposed rulemaking by year-end. Here are our highlights of what the comments say.

The baseline fight: the Chamber’s procedural objection

The U.S. Chamber of Commerce — which sued to block the 2025 form and won — filed a comment making one sharp, narrow point: the agencies keep calling the 2025 version the “Updated Form” and treating it as the starting point for the new rulemaking, and that gets the baseline backwards. In the Chamber’s words, the 2025 form “is no longer an ‘Updated Form’ . . . instead, it is a vacated form that has been found to violate federal law. The only legally valid form is the current form, or as the district court described it, ‘the old Form — used for forty-six years.’”

This isn’t a stylistic quibble. If the 2025 form is the baseline, the agencies can frame the rulemaking as trimming an existing rule. If the pre-2025 form is the baseline, every new requirement has to justify itself from zero — a much higher bar under the Administrative Procedure Act. The Chamber seems to be laying groundwork for the next round of litigation if the agencies pick the wrong posture.

The recurring theme: cut the items that cost the most and return the least

The single most common thread across the docket — from the merger bar, the bar association, and industry trade groups alike — is a request to right-size specific, identifiable line items on the 2025 form rather than a wholesale fight over the form’s existence.

Dechert’s comment is the most granular practitioner-level guide to what actually costs filers time. It splits the 2025 requirements into keep, cut, and clarify:

Cut or fix: the move away from a bright-line standard for draft transaction documents toward a subjective “two hats” test that forces lawyers to assess whether a board member reviewed a draft “in their capacity as such”; supply-relationship disclosures reaching third parties a filer would never investigate in the ordinary course; officer-and-director listings duplicated across every subsidiary in the ownership chain; and a top-10-customer breakdown layered on top of the existing product-overlap breakdown.
Keep: the single supervisory deal-team lead, the overlap narrative that lets filers explain why two businesses don’t really compete, and streamlined NAICS reporting that dropped the older NAPCS codes.

Dechert also flagged a separate idea floating in the RFI — automatic supplemental filings triggered when parties propose a divestiture or other remedy — and argued a new waiting period with an uncertain outcome would chill timely remedies and push some filers toward litigation instead.

The ABA’s Antitrust Law Section filed the longest and most technical comment and its through-line tracks Dechert’s: keep what’s cheap and useful, cut what costs more than it returns. On the keep side: NAICS revenue reporting, short business descriptions, and the streamlined “Item 4(d)” designation for passive deals. On the cut side: the same pressure points Dechert named — officer-and-director listings, supply-relationship disclosures, and a “Plans and Reports” demand that 2025 informal guidance stretched to cover things as trivial as a news article forwarded to a board. The officer-and-director critique is the sharpest: that disclosure exists to police Section 8 of the Clayton Act, but the 2025 form swept in board service across commonly controlled entities that cannot, as a matter of law, conspire with one another.

The Section also asked the agencies to streamline four categories that rarely raise concerns — passive investment-only deals, executive-compensation grants, “backside” filings from rollovers and earn-outs, and fund-to-fund transfers — backed by the agencies’ own data showing second-request rates near zero for those deals.

The second most common theme: don’t expand reportability to new deal types

A near-equally common position across the bar and industry comments is resistance to the RFI’s invitation to extend HSR reporting into new territory — acquihires, non-exclusive IP licenses, CFIUS-adjacent disclosures, and AI/sovereign-wealth-fund questions the RFI specifically raised.

The ABA Antitrust Section made the clearest legal argument against reaching acquihires through the form: employees are not a statutory “asset” under Section 6 of the Clayton Act (“the labor of a human being is not a commodity or article of commerce”), and the agencies already have civil investigative demands and Rule 801.90 to pursue any deal structured to dodge a filing.

The Computer & Communications Industry Association (CCIA) and NetChoice — both technology trade associations — made overlapping arguments that the form should stay a screen rather than become a dragnet. CCIA’s specific concern is scope creep: sweeping in otherwise non-reportable “hire-and-license-out” deals or requiring duplicative filings during a second request. NetChoice’s comment leaned on the district court’s own finding that the FTC had not shown the 2025 form’s benefits “reasonably outweigh” its costs, and cited the Commission’s own pre-vacatur estimate that the Updated Form roughly tripled average preparation time — from about 37 hours to 105 hours, with the highest-burden filings (those involving competitive overlaps or supply relationships) running 120-plus hours.

The Small Business & Entrepreneurship Council struck a similar note for startups, tying expanded reporting to slower exits and weaker venture formation.

Industry carve-out requests

Two sector-specific comments stand out for asking to be left alone entirely, on largely empirical grounds.

The American Hospital Association wants hospital mergers excluded from any revised form, leaning on the district court’s finding that the FTC could not identify a single anticompetitive merger that escaped the prior form but would have been caught by the 2025 version. The AHA also cites Chairman Ferguson’s prior comment that a transaction-rationale requirement benefits “high-priced law firms,” not the agencies, and his stated preference for a deeper cut than the 2025 rule made.

CCIA and the Small Business & Entrepreneurship Council make the technology and startup versions of the same point (see above), arguing that friction costs are especially high right now given competitive pressure in AI.

The outlier: state attorneys general want more, not less

Five state attorneys general — California, Connecticut, Rhode Island, Washington, and the District of Columbia — filed jointly, and their position is the opposite of nearly every other comment on the docket. They want the 2025 form’s requirements reinstated and then expanded: narrowing the “solely for the purpose of investment” exemption, eliminating the REIT exemption outright, and requiring upfront disclosures on acquihires and serial acquisitions, with consolidation in healthcare, technology, and housing as the stated targets. This reads as much as a roadmap for state-level enforcement as a comment on a federal form, consistent with states’ own expanding merger-notification regimes (Washington’s and California’s new premerger filing laws among them).

What it signals

Strip away the labels and the comments sort into two camps, heavily lopsided. The state AGs want the 2025 form back and expanded. Nearly everyone else who filed — the Chamber, the merger bar, the ABA Section, hospitals, tech trade groups, and small-business advocates — wants the pre-2025 form treated as the floor, with the 2025 additions justified item by item, if at all.

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How to Run the Antitrust HSR Process When Your CEO is Impatient

June 22, 2026 | Steve Cernak

Author: Steven Cernak

Say you are the in-house lawyer at a big company — call it Grand Motors — and you are responsible for making sure Hart-Scott-Rodino filings are made. With some variations, this hypothetical also works if you are in-house at, say, Wolverine Investments, a private equity firm. One day, one of your corporate colleagues stops by to inform you a big deal is about to be signed. She asks how quickly you can get the HSR in.

To make the hypo a little easier, imagine she at least informed you about the deal a few weeks ago and, at that time, you convinced yourself that a filing was necessary but there were no substantive antitrust issues. Maybe that is why she did not feel a need to keep you up to date on the deal’s progress. Even so, if you have taken the steps below, you can answer your colleague’s question with a timeframe that should make her, and your CEO, happy.

Gather Information, Identify Sources

While some parts of the form and the documentary attachments are specific to each deal, many parts do not vary for deals by the same parent entity. Long before your colleague asks you about this HSR, you should have gathered a lot of the necessary information and documents and identified potential sources for some of the rest.

For example, Item 5 of the current form requires you to list the U.S. revenues of your appropriate entity for the most recent fiscal year broken down by North American Industry Classification System codes. Depending on how large and diverse Grand Motors is, that process can take some time. As soon as Grand issues its annual report shortly after the end of its fiscal year, you should obtain a copy or a link to it (you will probably need to include it in the filing) and meet with the finance folks who developed it. Some of them might understand NAICS codes and already have a helpful report for non-HSR purposes. If not, you should work with the finance folks at Grand’s HQ and at its subsidiaries to classify those revenues into NAICS codes that make sense. Then, you can drop that report into your HSR filings for the next year.

Item 6(a) requires a list of all the entities controlled by Grand Motors or the appropriate entity. It also requires a list of the minority shareholders of Grand Motors or the appropriate entity. While both of those lists can change periodically, you can still gather them now from your corporate secretary’s office. Asking for updates when you have a filing to make will be easier than creating it anew.

Obviously, the information responsive to Item 7’s overlap questions cannot be finalized until you compare NAICS codes with the other party; however, as you gather the information for Items 5 and 6 above, you can determine which subsidiaries earned U.S. revenues in which NAICS codes. That information can help you complete Item 7(b)(i). If you are really ambitious, you can even work with the right people at each subsidiary to determine in which state, or more specific geographic area, such revenues were earned so you can respond to Item 7(c), if necessary.

Documents responsive to Items 4(c) and (d) necessarily vary by transaction. Remember, these documents, very roughly, are those seen by an officer or director that discuss sales, competition, and similar topics related to this particular transaction. While you cannot collect them before knowing a filing is necessary, you can identify potential sources for some of those documents. Depending on Grand’s organization and its document habits, those sources could be someone in the board secretary’s office; the regular M&A team; administrative assistants for the top brass; and the deal lawyers like your colleague. Knowing where to look internally, before turning to third parties like bankers and the other party, will save time.

All HSR filings require someone at Grand to sign the Certification and Affidavit/Declaration. Who has the authority, and is willing, to attest to the necessary statements, often at a moment’s notice? Identify that person — and if that person is a busy officer often on the road, identify his or her assistant who can help obtain the necessary signatures.

If Grand Motors is the Acquiring Person, it will be responsible for the filing fee of between $35K and $2.46M. What level(s) of approvals are necessary for such a wire transfer and who can provide them? How long do those approvals take? Which bank will process the transfer and is the name on the bank account Grand Motors Co. or something else? Again, tracking down that information well before your colleague drops news of the signing will decrease the time to filing.

Caveats and Implicit Advice

In this hypothetical, I assumed away two large issues — even for those issues, however, there are steps you can take to speed up and improve the process. First, before you make any HSR filing, you should have some understanding of any substantive antitrust issues the transaction might create. While you cannot anticipate and evaluate every potential deal, you can and should be well aware of Grand’s products, strengths and weaknesses, and competitors. Second, the question of whether a filing is necessary varies by transaction. To be prepared for that analysis, you should have a good understanding of HSR’s various thresholds and the identity and size of Grand’s Ultimate Parent Entity.

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Seven Lesser-Known Antitrust Exemptions and Immunities

June 18, 2026 | Aaron Gott

Author: Aaron Gott

There are a number of exemptions to and immunities from the federal antitrust laws. Some are well known, and we have written about many of them before. Jarod Bona catalogued the big ones—state-action immunity, the filed-rate doctrine, the insurance exemption under the McCarran-Ferguson Act, the baseball exemption, the Capper-Volstead Act for agricultural cooperatives, Noerr-Pennington, the statutory and non-statutory labor exemptions, implied immunity, export trade exemptions, foreign sovereign doctrines, the FTAIA, and primary jurisdiction.

Maybe you knew about the baseball exemption. But did you know about the Coca-Cola exemption? How about the Sports Broadcasting exemption? As you might expect, Congress has carved out various immunities and exemptions—often to serve a particularly powerful constituency—and Coca-Cola (and its bottlers) and the National Football League top the list for firms that hold enough cultural sway and political capital to obtain an antitrust golden ticket.

I’m an antitrust lawyer, and even I didn’t know about the Coca-Cola exemption—until I listened to the Coca-Cola episode of Acquired. And that wasn’t even the first time Acquired had taught me about antitrust: it also taught me about the Sports Broadcasting exemption. I decided enough was enough and catalogued some more of these lesser-known antitrust exemptions so that this doesn’t happen to you, too. Some of these exemptions are narrow, some are surprisingly broad. All of them are at least interesting.

The Fishermen’s Collective Marketing Act

Passed in 1934, the Fishermen’s Collective Marketing Act is essentially a Capper-Volstead Act for the fishing industry. It permits associations of fishermen to collectively catch, prepare, handle, and market fish and fish products without triggering antitrust liability. Like the Capper-Valstead Act, the fishermen’s exemption covers the cooperative’s core marketing activities but does not immunize predatory conduct—using the cooperative as a vehicle to harm processors, distributors, or other non-member competitors falls outside its protection. The Act is rarely litigated, which is part of why it flies under the radar, but for commercial fishing operations structured as cooperatives, it is the primary statutory basis for coordinating output and pricing that would otherwise look like textbook horizontal price-fixing. If you advise fishing cooperatives or process antitrust complaints in that industry, it’s worth understanding the ins and outs of this exemption. If don’t deal in the fish industry, you are now well on your way to crushing your next trivia question about obscure antitrust exemptions.

The Soft Drink Interbrand Competition Act

Did you know that Coca-Cola doesn’t actually make the product you know and love? Instead, it makes syrup, and it sells that syrup to independent bottlers through a licensing agreement. The bottlers mix that syrup with carbonated water and put it in a can or bottle, and then deliver it to the store where you buy it. Make no mistake, Coca-Cola tightly controls the process and this distribution model benefits Coca-Cola in myriad ways. But to make it work, Coca-Cola had to give these independents exclusive territories. And even though Coca-Cola’s distribution model had existed for decades, the FTC decided in the 1970s that it did not like it. (The agency also targeted Pepsi and its bottler network.) The FTC argued that the exclusive territorial arrangements that soft drink manufacturers used for bottler distribution violated Section 1 of the Sherman Act because they were unlawful market allocation agreements between competitors.

Congress passed the Soft Drink Interbrand Competition Act in 1980 to preempt that debate by statute, expressly authorizing exclusive territorial grants in carbonated soft drink distribution—so long as the manufacturer faces substantial and effective interbrand competition from other brands. That “interbrand competition” requirement is the meaningful limitation on the exemption: if a brand faces robust competition from other soft drink brands, its exclusive territories are immunized. If the market has become so concentrated that a brand faces no real interbrand pressure, the immunity is more fragile. The Act is a notable example of Congress legislating a specific safe harbor for a single industry’s distribution structure—conduct that, in most other contexts, could be unlawful depending on the specifics of the distribution structure.

The Newspaper Preservation Act

The Newspaper Preservation Act of 1970 authorizes joint operating agreements—JOAs—between competing newspapers in markets where one paper is at serious risk of financial failure. Under a JOA, two separately owned papers can merge their printing, distribution, advertising, and business operations while maintaining separate and independent editorial staffs. In antitrust terms, this is an explicit congressional authorization for competing publishers to share costs, coordinate pricing, and allocate markets in their commercial operations—conduct that would otherwise be per se illegal under the Sherman Act—so long as they seek preclearance to do so. The rationale is that two editorially independent papers sharing a back office serve the public better than one monopoly survivor. The Act requires the Attorney General to approve new JOAs, and the “probable danger of financial failure” standard is supposed to function as a real gatekeeping requirement—not a rubber stamp. The number of newspapers operating under JOAs has declined sharply as the industry has contracted, but as Pat Pascarella and I once argued, the JOA framework could still be relevant. And local news markets continue to consolidate as more and more papers go under.

The National Cooperative Research and Production Act

The National Cooperative Research and Production Act—the NCRPA—was originally enacted in 1984 as the National Cooperative Research Act and expanded in 1993 to cover production joint ventures. It does two distinct things. First, it requires that R&D and production joint ventures that file notification with the DOJ and FTC be evaluated under the rule of reason rather than the per se standard—a significant benefit given that horizontal coordination between competitors can attract fights over the application of the ancillary-restraints doctrine and possibly per se treatment. Second, and perhaps more importantly, it limits antitrust damages for qualifying ventures to actual damages rather than treble damages, even if the venture is ultimately found to have violated the antitrust laws. The notification process is not burdensome: the parties file with both agencies describing the venture’s scope and membership, and publish a summary in the Federal Register. The liability exposure drops substantially as soon as notification is filed. For technology consortia, standard-setting bodies, and any group of competitors considering pooled R&D or joint manufacturing, the NCRPA is a meaningful but often overlooked risk-reduction tool.

The Local Government Antitrust Act

The Local Government Antitrust Act of 1984—the LGAA—is distinct from, and more narrow than, state-action immunity under Parker v. Brown. State-action immunity is a complete defense: qualifying governmental conduct is simply not subject to antitrust liability. The LGAA operates differently. It does not immunize the underlying conduct; it eliminates only damages, and only for local governments and their officials. Under the LGAA, local governments and their officials acting in official capacities cannot be held liable for damages under the federal antitrust laws, even if their conduct is ultimately found to be anticompetitive. Injunctive and declaratory relief remain fully available. The practical consequence for plaintiffs is significant: before investing in antitrust litigation against a municipality or local agency, you need to assess whether injunctive relief alone justifies the cost, because treble damages—the usual engine driving private antitrust enforcement—are off the table. The LGAA damages bar can apply even when Parker immunity fails, so you want to consider both defenses in the case from the beginning.

The Shipping Act

The Shipping Act of 1984—updated by the Ocean Shipping Reform Act of 1998 and amended again by OSRA 2022—creates a regime of supervised antitrust immunity for ocean carrier agreements. Under the Act, common carriers can enter into agreements fixing rates, pooling revenues, allocating cargo, and coordinating vessel capacity, provided they file those agreements with the Federal Maritime Commission. Once filed, the agreements receive antitrust immunity unless the FMC acts to reject or modify them. The immunity is not unconditional: the FMC retains authority to prohibit agreement terms that are unjustly discriminatory or unreasonably harmful to shippers, and OSRA 2022 added new requirements around transparency and service contract compliance. But the core structure—FMC-supervised horizontal coordination among ocean carriers—remains intact and immunizes conduct that would be per se illegal under the Sherman Act in virtually any other context. For shippers challenging rate coordination or capacity management practices by ocean carriers, this means the FMC regulatory process, not an antitrust lawsuit, is generally the primary available remedy.

The Sports Broadcasting Act

The baseball exemption gets most of the attention in sports-and-antitrust discussions. Baseball’s exemption is judge-made, rooted in a 1922 Supreme Court decision holding that baseball was not interstate commerce—a conclusion the Court has since acknowledged was likely wrong but kept alive on stare decisis grounds. But there is another sports exemption that applies beyond baseball: the Sports Broadcasting Act.

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When Loyalty Programs Become Antitrust Problems: DOJ’s Bayer Seed Investigation

June 6, 2026 | Aaron Gott

Author: Aaron Gott

Last week, the Department of Justice announced that Bayer CropScience LLC has removed two sets of potentially anticompetitive provisions from its “Premier Performance Program”—a loyalty program for independent seed companies that sell Bayer’s corn and soybean seed. The announcement came not as the result of a consent decree or court order, but as a voluntary commitment Bayer made during the course of a still-ongoing DOJ investigation.

This is an example of a company taking a hard look at the antitrust risks of its sales initiatives and deciding that the benefit was outweighed by those risks.

Ideally, companies take a hard look at their antitrust risks before they face an investigation. So let’s talk about what those antitrust risks were for Bayer.

Bayer’s Loyalty Program

The Premier Performance Program gave independent seed companies discounts in exchange for meeting sales performance targets. Two features of the program drew DOJ scrutiny.

The first problem with Bayer’s loyalty program was that it imposed a tie. To qualify for discounts, seed companies had to hit targets for *both* corn seed *and* soybean seed. That is a textbook tying arrangement: access to favorable pricing on Product A (corn) conditioned on meeting volume targets for Product B (soybeans).

The antitrust laws treat tying with real suspicion. Tying is suspicious enough, in fact, that Congress has provided the government and private plaintiffs with three different ways under which they can plead a tying claim: as an anticompetitive agreement (between supplier and customer) that violates Sherman Act Section 1; as a unilateral anticompetitive act by a supplier with monopoly power under Sherman Act Section 2; and as a conditional sales arrangement for goods under Clayton Act Section 3. While the requirements of the three different tying claims vary, a seller has antitrust risk for tying where the seller has, at a minimum, appreciable economic power in the tying product.

In a competitive, open market, buyers are free to buy the products they want from the sellers they want. With tying, a seller usurps that choice, using its power in the tying market (where it sells a product customers want) to force buyers to also buy from seller in the tied market (where it sells a product customers don’t want, or at least don’t necessarily want it from seller). As a result, competition in the second (the “tied”) market suffers—alternatives go unpurchased, rivals lose distribution, and that market concentrates around the seller. The result is that seller wins in the “tied” market for reasons other than the merits of seller’s participation in that market. And one largely unspoken principle of antitrust law is that winning for reasons other than the merits is always suspicious.

That was the DOJ’s concern with Bayer’s loyalty program. The DOJ’s announcement notes that Bayer is “the primary source for traited corn seed sold by independent seed companies.” So Bayer is a dominant supplier of traited corn seed, and its loyalty program gave discounts only if the seed company buyers also bought soybean seed from Bayer. In other words, Bayer required customers to take a second product to get favorable terms on the first. In effect, Bayer imposed a toll on corn seed buyers who did not also buy its soybean seeds.

The second problem with Bayer’s loyalty program was that it incentivized exclusivity. The program included provisions that could reduce independent seed companies’ willingness to license seed technology from Bayer’s competitors. The DOJ viewed these incentives as potentially anticompetitive because, it suspected, Bayer was using its loyalty program to foreclose rival seed technology from the distribution channel.

Exclusive dealing and its “cousins”—loyalty discounts, bundled rebates, and incentive programs that effectively limit customers’ ability to patronize competitors—are analyzed under the rule of reason. The question is whether the program forecloses a substantial share of the distribution channel to rivals. A loyalty program that financially penalizes seed companies for licensing competitors’ genetics does exactly that.

Taking a step back from these specific doctrines, the DOJ looked at Bayer’s loyalty program and saw a set of complementary, unilaterally imposed contract terms and incentive structures that functioned to foreclose competition in markets Bayer participated in by using its already substantial power rather than by competing on the merits day by day, product by product. At its core, that is what Section 2 of the Sherman Act seeks to prevent.

Lessons for Investigative Targets

Bayer eliminated both aspects of its loyalty program and has committed not to reinstate them for seven years.

It’s worth noting what Bayer’s commitment does and does not do. DOJ announced that Bayer made its commitment as a result of an “ongoing investigation” and made the changes “during the course of” that investigation. But Bayer did this voluntarily, not because it reached a consent agreement with DOJ. While DOJ will likely consider Bayer’s voluntary cessation of the conduct as a mitigating factor as it proceeds, it does not end the investigation and DOJ remains free to continue its investigation, pursue enforcement, and demand further remedies.

Still, this kind of resolution—behavioral commitments extracted through investigation pressure before DOJ undertakes formal litigation—is common in DOJ enforcement. The Division announces publicly that the conduct has changed, creates a deterrent effect across the industry, and reserves the right to continue its investigation. For Bayer, the alternative was presumably a filed case or a consent decree with more constraining terms. For the DOJ, it is an efficient way to change conduct quickly without committing the resources required for litigation while maintaining full flexibility and discretion going forward —not to mention the ever-present, implicit threat of exercising that discretion to maximum effect.

Also trending in DOJ enforcement? Agribusiness. Bayer is not the first agribusiness to draw this kind of DOJ scrutiny in recent years, and it is unlikely to be the last. Agricultural input markets—seeds, chemicals, equipment—are concentrated and have been under increased enforcement attention since the DOJ and USDA signed their 2025 memorandum of understanding on agricultural competition. Acting Assistant Attorney General Omeed Assefi said it plainly: “Enforcement in agriculture is a top priority for the Antitrust Division.” And that’s to say nothing of state antitrust enforcers, some of whom have also made conduct and concentration in agriculture a chief priority.

Lessons for Loyalty Programs

Ideally, your company will not become an investigative target because of its loyalty programs in the first place. Loyalty programs create risks that can be managed—and assessed against their benefits. A few questions are worth asking to start:

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