FTC Rescinds Vertical Merger Guidelines

An experienced digital media attorney, Hayley Lattman (Hayley Geftman-Gold) began her legal career as an associate at Willkie Farr and Gallagher, LLP and Venture Law Group before joining MTV Networks as vice president of business and legal affairs. As a lawyer, Hayley Lattman is experienced in advertising and marketing law, including agreements between businesses and ad agencies, as well as content evaluation for FCC and FTC compliance.

The Federal Trade Commission (FTC) voted 3-2 to remove support for the Vertical Merger Guidelines which the FTC and the US Department of Justice's (DOJ) Antitrust Division jointly adopted. The Vertical Merger Guidelines are intended to provide parties with insight into how the Federal Trade Commission and the Department of Justice evaluate vertical mergers of enterprises or assets. The Vertical Merger Guidelines were established in June 2020 on a party-line vote, along with the three Republican Commissioners and the then-Republican-led DOJ backing them against the intense opposition of the two Democratic Commissioners.

The Democratic Commissioners explained in their majority statement that The Federal Trade Commission has revoked its approval of the Vertical Merger Guidelines “to prevent further industry or judicial reliance on certain flawed provisions,” particularly those concerning the “purported procompetitive benefits (i.e., efficiencies) of vertical mergers” and EDM treatment. The FTC and the DOJ may have divergent standards on vertical mergers, since DOJ Acting Assistant Attorney General Richard A. Powers stated shortly after the FTC's vote that, while the Department is examining the Vertical Merger Guidelines, they are still in effect at the DOJ.

Depending on which entity reviews their deal, merging parties may undergo a different sort of vertical merger analysis. The FTC may be less inclined to clear or settle vertical agreements quickly in the future.

How Marketing Can Proceed

Hayley Lattman (Geftman-Gold) is an established New York lawyer who has focused on privacy and data marketing in her years working with corporate clients. Industry focused, attorney Hayley Lattman has a strong interest in ways that companies navigate consumer data that, with new regulations, is increasingly difficult to access.

As highlighted in a Forbes article, major shifts have occurred within the marketing landscape, including those related to the California Consumer Privacy Act and the EU's General Data Protection Regulation.

At the same time, Apple, which provides the iPhone interface for much mobile marketing, has added new privacy restrictions to its mobile operating system. Users now need to deliberately opt-in when sharing their “Identifier for Advertisers” (IDFA) in apps. This makes highly personalized ad delivery much more challenging and impacts major apps such as Facebook, which generates $84 billion annually through advertising alone. In addition, by 2022, Google will phase out third-party cookies on its Chrome platform, which will impact marketers ability to glean individual consumer insight from clicks and other online activity.

With the ability to market products to individuals slipping, the positive is that these changes affect all companies alike. Consumers still exist and impactful content can still be distributed to audience-aligned locations. As access to data becomes more restricted, human insight becomes ever more important. The optimal approach moving forward may be one that employs transparent, identity-based marketing techniques that are fully compliant with privacy law.

Common Risks Associated With PDP

A lawyer with more than two decades of experience, Hayley Lattman recently served as senior counsel for Etsy, Inc. She worked with the marketing technology product team and assisted with drafting financial terms and reviewing external communications. Attorney Hayley Lattman (Geftman-Gold) is also experienced with the product development process and product development risks. Here are common risks tied to the product development process:

Underestimating Human Resources. To ensure on-time delivery, companies must have the human resources necessary for each project. Organizing teams into small groups and fostering collaboration reduces risk.

Delaying Product Launch. Several things contribute to delays in product development. Delaying a product launch means delaying revenue. Companies must implement plans and strategies that keep projects moving smoothly despite obstacles. Companies must be aware that one launch date impacts the development of other products.

Creating A Product With No Market Demand. Many people assume they know what users need. This assumption leaves companies open to a large amount of risk. During the development process, businesses must find out what their market actually needs. Then develop a product that addresses the need and solves consumer problems.