CRA Insights

When the relevant market is your work force: How labor law may inform M&A

January 25, 2023
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Antitrust laws prohibit firms from restricting competition in both product and labor markets. However, government officials have focused most of their attention on analyzing the effects of product market concentration. Recent developments seem to indicate a growing interest on the part of the authorities in the effects of labor market consolidation.

In 2017, Senator Amy Klobuchar (D-MN) introduced the Competition and Antitrust Law Enforcement Reform Act, a bill that would require antitrust authorities to include labor market considerations during merger review. In 2018, the Federal Trade Commission (FTC) held hearings to debate the consideration of labor market power during merger review.

More recently, new agreements allow several federal agencies to coordinate their efforts to collaborate on unfair labor practice investigations, leaving open the possibility of triggering FTC merger reviews informed by labor law. Most importantly, the blocking of the proposed acquisition of Simon & Schuster by Penguin Random House because of its potential anticompetitive effects on writers’ compensation seems to confirm the authorities’ interest in the effects of consolidations on labor markets.

There is still not much clarity regarding the eventual rules and regulations that will govern future mergers and acquisitions in terms of their impact on labor markets (or even whether proposed transactions will be consistently reviewed based on their effects on labor markets). This article attempts to discuss what areas and metrics the regulators may look at during merger reviews informed by labor law.