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Alexis J. Gilman is a partner in Crowell & Moring’s Antitrust Group in the Washington, D.C. office, with significant prior government experience. At Crowell & Moring, Alexis advises and represents clients on a broad range of civil antitrust matters, including compliance counseling and training, premerger HSR notifications, merger reviews, government investigations, and litigation, with a particular focus on representing merging parties and third parties in merger investigations by the Federal Trade Commission, Department of Justice, and state attorneys general offices. His experience spans a wide-range of industries, including healthcare, retail, consumer goods, food and beverage, distribution, casinos and gaming, and telecommunications. In 2019, based on research with clients and peers, Alexis was selected by Who’s Who Legal for recognition in the category Competition – Future Leaders.

 

Here, we identify 10 key issues relating to how the U.S. antitrust agencies—the Federal Trade Commission (FTC) and Department of Justice (DOJ)—analyze CPG transactions.

1) High-End vs. Low-End

Antitrust agencies often define the market for the merging parties’ products quite narrowly. In one notable example, the FTC defined a market limited to “intense mints” (think

There was a time when a quick estimate of market shares might have been enough to provide a reasonable assessment of antitrust risk for a potential combination between two brick and mortar retail chain stores.

Not anymore.

The playbook for evaluating competitive concerns from a potential combination of two brick and mortar retailers has