Economic Analysis of Merger Remedies
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Introduction
When a US antitrust agency (i.e., the Federal Trade Commission (FTC) or the Department of Justice (DOJ) Antitrust Division) challenges a proposed merger, there are a number of possible outcomes. The parties may abandon the transaction, the agency may enter into a settlement with the parties,2 the courts may rule to block the transaction or the courts may rule to allow the transaction to proceed.3 A settlement between an agency and the merging parties typically includes remedies that modify the proposed transaction.4 These remedies can be structural, behavioural or both.5 Structural remedies address changes in the structure of the relevant markets as a result of the merger (e.g., consolidation from three to two market participants) and generally require the merging firms to divest certain assets. Behavioural remedies address potential changes in the conduct of the merging firms after the merger (e.g., raising rivals’ costs) and may involve monitoring the merged firm’s behaviour. Among challenged mergers in the US with publicly disclosed remedies, only 13 per cent of such mergers involved purely behavioural remedies between 1999 and 2003, and this share decreased further to 6 per cent between 2017 and 2021.6
When choosing a remedy to address concerns about a merger’s potential to reduce competition, the agencies have two primary objectives: to preserve pre-merger competition and to preserve the merger’s efficiency-enhancing potential.7 The agencies try to avoid remedies that are unnecessary for preserving competition or that ‘unjustifiably restrict companies’ ability to compete and raise costs to consumers’.8 The agencies consider several economic questions when evaluating a potential remedy: the effect of a merger on competition in a relevant market, the viability of monitoring and enforcing the remedy and the strength of the efficiency justifications for the merger.9
The processes by which the DOJ or FTC enters into a settlement with merging parties differ statutorily. Settlements with the DOJ are subject to review under the Antitrust Procedures and Penalties Act (known as the Tunney Act), which stipulates that a US district court must review and approve any consent decree the DOJ issues.10 Since the passage of the Act in 1974, most ‘Tunney proceedings’ have been procedural, with judges accepting proposed settlements without detailed review.11 A 2004 amendment, however, encouraged increased judicial scrutiny of proposed settlements,12 and in 2019, CVS/Aetna was the first merger to go through an evidentiary proceeding in a Tunney Act review.13 By contrast, the FTC is not subject to a court approval requirement, and instead issues consent decrees after reaching settlements with merging parties.14
In the following sections, we review key economic issues the agencies consider when analysing the competitive effects of horizontal and vertical mergers, discuss recent developments in the economic analysis of merger remedies and offer case examples that illustrate these issues and developments.
Horizontal mergers
A key economic issue in analysing the competitive effect of a horizontal merger is the potential loss of head-to-head competition between the merging firms.15 Prior to a merger, the merging firms may compete with one another and with other competitors on price, quality and innovation. Post-merger, the merging firms internalise the effects of any strategic decisions on the overall profits of the merged entity rather than their individual profits, which may change their incentives. Any changes in the merging firms’ incentives may lead to higher prices, lower output, lower quality or less innovation by the merging firms. Changes in the merging firms’ incentives may also lead to strategic actions by the merged firms’ competitors as they respond to the changed landscape of the industry.
When the agencies determine that a horizontal merger is likely to cause harm to competition that would not be offset by countervailing factors such as merger-specific efficiencies, entry or expansion, they may propose a remedy to preserve competition in one or more relevant markets. For horizontal mergers, the agencies typically require a divestiture – the sale of businesses or assets by the merging firms. A divestiture can preserve competition by maintaining the same number of competitors who have similar incentives and abilities to compete pre-merger and post-merger, while allowing the merging firms to realise efficiencies and proceed with the merger in relevant markets without competition concerns.
Example 1: Republic Services/Santek Waste Services
The Republic/Santek acquisition is a recent example involving divestitures in certain geographical markets with competitive concerns. In 2020, Republic, a non-hazardous solid waste collection and disposal company in the United States, agreed to acquire Santek, another waste management company with operations in the US Southeast.16 The acquisition offered potential efficiencies through economies of scale in the small container commercial waste (SCCW) collection and municipal solid waste (MSW) disposal product markets. However, the DOJ was concerned that the acquisition would harm competition in certain geographic markets by reducing the number of head-to-head competitors. The DOJ issued a complaint noting that the geographic markets for SCCW and MSW are localised because of high transportation costs, and it identified four relevant geographic markets for SCCW collection (the Birmingham, Alabama area; the Chattanooga, Tennessee and North Georgia area; the Eastern Montgomery County, Texas area; and the Hattiesburg, Mississippi area) and two relevant geographic markets for MSW disposal (the Chattanooga, Tennessee area and the Estill Springs and Fayetteville, Tennessee area) where Republic’s acquisition would likely cause harm to consumers by reducing competition.17 Republic agreed to divest parts of its waste collection and disposal businesses within Georgia, Alabama, Tennessee and Mississippi to Kinderhook Industries, a private equity (PE) firm,18 and to divest Santek’s waste collection routes in Texas to Waste Connections, a waste services company.19
The agencies consider three primary economic issues when designing a remedy for a horizontal merger: (1) whether a structural remedy is sufficient, or whether additional remedies are necessary to ensure the success of the divestiture; (2) which assets should be divested; and (3) whether the firm buying the divested assets will be able to compete effectively.
Emphasis on structural remedies
Although the agencies have always preferred structural remedies over behavioural remedies for horizontal mergers, the DOJ emphasised its preference in its 2020 Merger Remedies Manual, explaining that structural remedies ‘are clean and certain, effective, and avoid ongoing government entanglement in the market’.20 In contrast, behavioural remedies often attempt to restrict the merged firm’s behaviour in ways that constrain its ability to maximise profits. The Assistant Attorney General for the Antitrust Division stated in 2022 that ‘it is often impossible to craft behavioural remedies that anticipate the complex incentives that drive corporate decision-making’.21 Additionally, restrictions imposed on the merged firm’s behaviour for a long period may prevent the firm from efficiently responding to changes in market conditions.
However, the DOJ also noted in its 2020 Merger Remedies Manual that ‘[t]ailored conduct relief may be useful in certain circumstances to facilitate effective structural relief’.22 For example, if a buyer is unable to start manufacturing a product or providing a service immediately after acquiring the divested assets, then behavioural remedies imposed on the merging parties, such as requiring short-term supply agreements, may help the new buyer compete in the relevant market immediately. Imposing terms on divestiture buyers may also help assuage concerns that behavioural remedies could reduce a buyer’s incentive to develop the capabilities necessary to compete independently – for example, by relying on supply agreements with the merged firm instead of developing its own manufacturing infrastructure.23
Example 2: Sprint/T-Mobile
The 2019 Sprint/T-Mobile merger involved both structural and behavioural remedies, including commitments from the merged firm and from the divestiture buyer to compete. Prior to the DOJ’s complaint, Sprint and T-Mobile made several commitments to the Federal Communications Commission (FCC) to facilitate the merger, including (1) divestiture of Boost Mobile (Sprint’s prepaid mobile brand); (2) a freeze on prices for three years; and (3) the deployment of 5G and in-home broadband in rural areas.24 The DOJ’s proposed final judgment included a multifaceted set of incentives and penalties, including the divestiture of Sprint’s prepaid business and other assets to DISH Network Corporation, behavioural remedies to facilitate the divestiture, a requirement that the merged firm build out its network and a requirement that DISH deploy a nationwide 5G network covering 70 per cent of the US population by June 2023 (which DISH recently satisfied).25 As this chapter was going to print, DISH requested an extension to its agreed-upon timeline for purchasing 800 MHz spectrum from T-Mobile.26
Public comments submitted during the Tunney proceedings involved extensive discussion of DISH’s incentives and ability to compete in the mobile wireless market, as well as the enforceability of the proposed behavioural remedies.27 Commentators questioned DISH’s viability as a buyer, noting that DISH had acquired spectrum over the course of several years prior to the merger but had not deployed a network. The DOJ argued that DISH had been waiting to develop a 5G network instead of a 4G network and that it was more likely to compete successfully with other mobile wireless providers after the acquisition of the divested assets. Commentators also argued that the behavioural remedies would be difficult to monitor and would reduce DISH’s incentives to compete independently because it could simply rely on T-Mobile’s networks. The DOJ argued that the divestiture was at the heart of the proposed remedy and that the proposed behavioural remedies were meant to complement this divestiture in the short term.28
Identifying a firm to buy divested assets
When approving a buyer for divested assets, the agencies’ primary goal is to determine whether the potential buyer has the incentives, capabilities and resources to replace the competition that otherwise would be lost as a result of the merger. In addition, the potential buyer’s acquisition of the divested assets must not itself create a competitive concern. For example, divesting assets to the dominant player in an industry may not preserve pre-merger competition.
Example 3: CVS/Aetna
CVS, which offers retail pharmacy services, pharmacy benefit management (PBM) services and prescription drug plans (PDPs), and Aetna, a health insurance company, competed for individual Medicare Part D PDPs prior to their merger.29 The DOJ alleged that CVS’s acquisition of Aetna would significantly reduce competition in the PDP market in 16 geographic regions30 and could result in increased premiums and costs, lessening of service quality and a reduction in innovation.31 The DOJ filed a proposed consent decree requiring the parties to divest Aetna’s PDP business to an independently owned competitor, WellCare,32 arguing that WellCare would have the incentives and resources to compete ‘vigorously’ in the 16 geographic areas of concern where Aetna previously operated.33 The DOJ received more than 1,800 pages of public comments on its proposed consent decree, and the merger became the first to go through an evidentiary proceeding in a Tunney review.34 The viability of WellCare as a buyer was widely discussed. Commentators questioned WellCare’s ability and incentives to compete with the merged firm in the PDP market and argued that CVS could restrict WellCare’s access to PBM and other pharmacy services.35 CVS and the DOJ argued that the PDP market was highly competitive and that WellCare’s recent success as a competitor in the PDP market suggested that WellCare would continue to remain competitive after acquiring Aetna’s assets.36 CVS also argued that it faced intense competition for PBM customers.37 The court agreed that if faced with a potential price increase for PBM services, WellCare ‘could simply switch to a less expensive PBM’, and the merger was cleared with the proposed divestiture.38
The merging firms may identify and propose different types of buyers for the assets to be divested, including buyers that already operate in the industry, PE buyers and others. Different types of buyers present different risks and benefits, and the agencies have to assess the viability of a proposed buyer based on its specific characteristics.39
The DOJ expressed greater openness to PE buyers in its 2020 Merger Remedies Manual, stating that ‘in some cases a private equity purchaser may be preferred’ and highlighting that a PE buyer may possess greater flexibility in its investment strategy.40 Indeed, the FTC’s retrospective study of mergers from 2006 to 2012 found that a buyer’s financial flexibility can be an important factor in a divestiture’s success.41 PE buyers may also be attractive in markets with high concentration, where the divestment of assets to an existing competitor would further increase concentration. The Sika/MBCC merger is an example in which a PE firm, Cinven, was chosen as the divestiture buyer over an existing competitor, INEOS, after the Competition and Markets Authority (CMA) expressed concern about a lack of competition in the construction chemicals sector in the UK post-merger.42 However, the DOJ has expressed scepticism about PE buyers recently, claiming that their lack of experience and incentive to restore competition makes them less attractive than strategic buyers.43 Additionally, PE buyers may be more likely than strategic buyers to exit or sell the divested assets after a short period, creating additional uncertainty about the likely success of the divestiture.44 For example, Sycamore Partners, a PE firm, purchased 330 discount retail stores that were divested during the Dollar Tree/Family Dollar merger,45 but Sycamore sold the stores to Dollar General and laid off approximately 3,000 employees within 18 months of acquiring the stores.46
Development of new remedies to address new types of assets
As antitrust agencies encounter mergers involving new competitive dynamics, economic considerations for assessing both competition and remedies evolve. For example, data can be a significant asset in mergers of digital companies, and antitrust authorities have begun to design remedies to prevent a merged firm from using combined data to foreclose competition. In 2020, the European Commission (EC) accepted a ‘data silo’ remedy for the first time to address concerns about Google combining its data with Fitbit’s data to further personalise ads and stifle competition in online advertising.47 To address the concern, Google offered to not use Fitbit data for Google Ads, instead storing the data collected using Fitbit devices in a data silo for 10 years.48 In June 2021, Margrethe Vestager, the EC’s executive vice-president for digital matters and Commissioner for Competition, discussed the potential for such remedies to become more common as data become increasingly important in mergers involving digital platforms. She also stated that, with reliable technology, a data silo can be more like a structural remedy than a behavioural remedy.49
The role of data in mergers has also gained broader attention in the United States following a July 2021 Executive Order that, among other things, encouraged antitrust agencies to pay particular attention to data accumulation during merger reviews.50
Example 4: UnitedHealth Group/Change Healthcare
The DOJ challenged United’s proposed acquisition of Change in 2022. United operates UnitedHealth, which is the largest health insurer in the US, and Optum, which provides pharmacy, healthcare provision and data analytics services.51 Change is a healthcare technology company that, among other services, acts as a clearing house for health insurance claims, enabling the electronic transmission of claims between insurers and healthcare providers. To address the horizontal overlap between United’s and Change’s businesses in first-pass claims editing, United agreed to divest Change’s first-pass claims editing software, ClaimsXten, to the PE firm TPG Capital. The DOJ argued that, even with this divestiture, the acquisition could provide United with an unfair advantage in its health insurance business by giving United access to the claims data of its rival health insurers. United argued that it already had access to claims data through the Optum arm of the business, which operates at ‘arm’s length’ to UnitedHealth, and that the misuse of Change data would be ‘economic suicide’ for that business. United also claimed that the additional claims data obtained through Change could only ‘[i]ncreas[e] efficiency and reduce friction’ for Optum.52 A federal judge sided with United, and the acquisition was completed in October 2022.53 The DOJ filed an appeal before voluntarily dismissing the case.54
While no remedies involving data were enacted in the United/Change merger, the case is consistent with a growing trend among antitrust authorities across jurisdictions to assess the implications of mergers for data accumulation and access and to consider remedies to address data-related concerns. Mergers such as the Meta/CRM merger and the Daimler/BMW joint venture have also highlighted antitrust authorities’ preference for data accessibility by third parties after a merger. In both cases, the EC asked for behavioural remedies that allowed data access to third parties.55
Vertical mergers
Although vertical mergers accounted for only 5 per cent of the US antitrust agencies’ enforcement actions between 1994 and 2018, the share has grown in recent years, with vertical mergers accounting for closer to 10 per cent of enforcement actions in the United States from 2018 to 2020.56 The release of the DOJ’s and FTC’s 2020 Vertical Merger Guidelines signalled the agencies’ increased scrutiny of vertical mergers.57 Although the FTC withdrew its approval of the Guidelines in 2021, its press release suggested one reason for doing so was that the agency viewed the guidelines as too generous on the pro-competitive benefits of vertical mergers.58 In June 2023, the FTC signalled its continued scrutiny of vertical mergers via proposed new rules on pre-merger notifications, which, among other changes, would require merging parties to provide more detail on vertical relationships.59
The economic analysis of vertical mergers is often more complex than that of horizontal mergers. Unlike horizontal mergers, which involve firms at the same level of the supply chain, vertical mergers involve firms at different levels of the supply chain that are not direct competitors. A merger of such firms may lead to pro-competitive efficiencies by (1) allowing the firms to combine complementary assets and (2) eliminating double marginalisation, thereby lowering costs for the vertically integrated firm and potentially leading to lower prices and other benefits for consumers. However, a vertical merger may also change the merging firms’ incentives in ways that could lead to competitive harm.
As articulated in the 2020 Vertical Merger Guidelines, at least four categories of potential anticompetitive harm may arise from a vertical merger:
- foreclosure of rival firms from inputs or other complementary products;
- increased costs to rival firms for such products;
- harm resulting from the merged firm having access to competitively sensitive information about rival firms; and
- increased likelihood of coordinated actions (e.g., tacit collusion).60
The first two categories of potential harm arise from changes in incentives as the merged firm internalises costs and benefits to the combined entity instead of the individual firms.61 The third category arises from the combination of firms at different levels of the supply chain, where a firm at one level may have competitively sensitive information about rival firms at another level owing to pre-merger supplier or customer relationships.62 Finally, an increased likelihood of coordinated actions may occur as a consequence of the merged firm having access to competitively sensitive information, or because of the elimination or weakening of a rival firm.63
The varied categories of potential harm and efficiencies that can arise from vertical integration may lead to different considerations for remedies in vertical mergers in comparison to horizontal mergers, as well as for different vertical mergers. In light of the agencies’ increased scrutiny of vertical mergers in recent years, we discuss three current developments in the realm of remedies for vertical mergers:
- discussion of the use of structural versus behavioural remedies and the trade-offs between these different types of remedies;
- ‘litigating the fix’ and the role of remedies in economic analysis; and
- merging parties’ reliance on prior mergers in their economic analyses and proposed remedies.
Discussion of structural versus behavioural remedies
The DOJ and FTC have each expressed a preference for structural remedies over behavioural remedies for both horizontal and vertical mergers because of their simplicity, effectiveness and lack of required monitoring.64 In 2022, former FTC Commissioner Christine S Wilson noted that behavioural remedies may not be sufficient to address anticompetitive concerns from vertical mergers in markets where it is difficult to anticipate all the ways in which a merged firm might disadvantage competitors, such as markets involving unique technological inputs.65
However, the agencies have also recognised that in some vertical mergers, a behavioural remedy may be preferred over a structural remedy if it enables the pro-competitive efficiencies from the merger to be realised when a structural remedy would not.66 For example, a behavioural remedy such as a supply or licensing agreement between a merged firm and downstream competitors may address concerns about foreclosure while allowing consumers to benefit from efficiencies such as the elimination of double marginalisation. In contrast, a structural remedy such as a divestiture may eliminate concerns about foreclosure but also preclude pro-competitive efficiencies.
If effectively crafted and monitored, behavioural remedies can counter the merged firm’s incentives to disadvantage competitors while allowing the merged firm (and customers) to realise the efficiencies of the vertical integration. The FTC’s 2017 retrospective study of merger remedies found that all four vertical mergers challenged by the FTC between 2006 and 2012 involved settlements with behavioural remedies only, and that those remedies were successful in maintaining competition at pre-merger levels.67 Nevertheless, there remains some inherent tension in the economic justifications for behavioural remedies in vertical mergers and the viability of their enforcement. Although behavioural remedies such as supply agreements may have some appeal in targeting concerns about foreclosure and raising rivals’ costs, they only restrict the merged firm’s ability to engage in anticompetitive behaviour without changing its incentive to do so, necessitating continuing monitoring. This tension has manifested in recent vertical merger court challenges.
Example 5: Illumina/GRAIL
The FTC challenged Illumina’s proposed acquisition of GRAIL in 2021. GRAIL produces tests to screen for multiple types of cancer at early stages (MCED tests). GRAIL’s technology relies on DNA sequencing and, according to the FTC’s complaint, Illumina is the only viable provider of DNA sequencing for MCED tests in the United States.68 To allay concerns about Illumina foreclosing GRAIL’s competitors from – or raising their costs for – accessing its technology, Illumina publicly offered its US oncology customers a 12-year supply contract guaranteeing access to Illumina’s technologies and no increase in prices for the sequencing products covered by the agreement.69 The FTC nevertheless challenged the transaction, expressing concerns that the supply agreements could not account for all the ways in which Illumina might disadvantage GRAIL’s rivals.70 The parties completed the transaction in August 2021, and the complaint was dismissed by the FTC’s chief administrative law judge in September 2022.71 However, the FTC staff appealed to the commission, which ordered Illumina to divest GRAIL in April 2023.72 Illumina has appealed the order.73 Concurrently, in Europe, the EC reviewed the acquisition and found that Illumina’s proposed remedies did not adequately address its concerns and prohibited the acquisition in late 2022.74 Illumina appealed the order in Europe, and in July 2023 the EC fined Illumina at 10 per cent of its global revenue – the maximum allowed by EU rules – because it did not unwind the acquisition while awaiting the appeals process.75 On 12 October 2023, the EC ordered Illumina to unwind its acquisition of GRAIL.76
‘Litigating the fix’ and the role of remedies in economic analysis
As antitrust authorities continue to express their views and guidance on different types of remedies, merging parties in both vertical and horizontal mergers have increasingly been successfully pursuing a strategy referred to as ‘litigating the fix’, in which the parties ask trial courts to adjudicate a merger as ‘remedied’ by a voluntary structural or behavioural remedy rather than proposing the remedy to an enforcement agency and awaiting their reactions.77 Recent examples include Evonik/PeroxyChem and Assa Aloy-Spectrum.78 Such a shift towards remedies being addressed in courts may raise new questions about whether and how to model proposed remedies in the economic analysis of the competitive effects of mergers, as recently illustrated by the US ruling in the Microsoft/Activision Blizzard merger.
Example 6: Microsoft/Activision Blizzard
Microsoft’s proposed acquisition of Activision Blizzard, initiated in 2022, has garnered attention from competition authorities in both the US and Europe. Activision Blizzard is a video game developer that produces high-profile video games such as Call of Duty and Diablo. Microsoft develops and sells Xbox gaming consoles, one of three high-performance video game consoles.79 According to the FTC’s complaint, Microsoft’s acquisition of Activision Blizzard would ‘provide Microsoft with the ability to withhold or degrade Activision content’, including through changes in price, quality or access.80 To allay these concerns, Microsoft pledged to license Call of Duty, Activision Blizzard’s marquee gaming franchise, to its gaming console competitors Nintendo and Sony,81 and entered into such agreements with Nintendo and rival cloud gaming operator Nvidia in February 2023.82 The FTC still challenged the merger, in part citing Microsoft’s 2021 acquisition of ZeniMax, in which Microsoft made several ZeniMax games exclusive to Microsoft after the transaction cleared despite assuring regulators that it would not have an incentive to do so.83 In July 2023, a federal judge denied the FTC’s request for a preliminary injunction, citing lack of evidence that the merged entity would have an incentive to foreclose rivals from accessing Call of Duty and other Activision content, and critiquing the FTC’s economic expert for not considering Microsoft’s already signed agreements with Nintendo and Nvidia or its offer of a licensing agreement to Sony.84 At the time of publication, the FTC’s appeal against the federal judge’s decision was pending.85
In Europe, the merger review concluded in late 2023. Microsoft publicly offered free licences to consumers and cloud game streaming service providers to allow them to stream current and future Activision games in Europe.86,87 While the EC approved the merger with this behavioural remedy,88 the CMA initially blocked the merger, citing concerns about the need for ongoing regulation in the cloud gaming market and the position that behavioural remedies are less effective than structural remedies.89 However, after Microsoft agreed to divest ‘the cloud [game] streaming rights (outside the [European Economic Area]) for all of Activision’s PC and console content produced over the next 15 years’ to Ubisoft, the CMA approved the merger.90 Despite the FTC’s ongoing challenge, the companies closed the deal on the day of the CMA’s approval, 13 October 2023.91
The Microsoft/Activision Blizzard case highlights the need for merging multinational firms to satisfy the concerns of multiple antitrust authorities both nationally and worldwide, which may have varying preferences over different types of remedies. This case also illustrates the merging parties’ incentive to propose remedies and resolve antitrust authorities’ competitive concerns to avoid further proceedings.
Reliance on prior mergers in remedy design and economic analysis
Given the complexities of vertical mergers and lack of conclusive evidence in the economic literature about their effects and effective remedies,92 both the agencies and merging parties have turned to prior mergers as a foundation for designing and proposing remedies and as natural experiments for economic analysis. The FTC’s reliance on Microsoft’s 2021 acquisition of ZeniMax as a basis for its complaint in Microsoft/Activision is one such example. The AT&T/Time Warner merger is another example – the parties proposed a remedy based on the NBC Universal/Comcast merger in 2011,93 and the parties’ economic expert argued that prior similar vertical mergers between content creators and content distributors provided no evidence of higher prices.94
Designing and proposing remedies based on prior successful mergers may be attractive, especially when the circumstances of the industry are comparable to the merger at issue. However, as antitrust scrutiny of vertical mergers continues, there is no guarantee that remedies used in the past will be viewed as acceptable means of alleviating competitive concerns for mergers in the future, particularly as industries evolve and new issues arise. Rapid changes in industries and technology highlight a need for remedies to withstand or adapt to changing industry conditions, which could pose a particular challenge for behavioural remedies by requiring increased monitoring of the merged firm.95 Changing industry landscapes also highlight the need for economists and antitrust practitioners to continue to analyse and learn from past vertical mergers while developing tools that can be applied broadly to different circumstances that may arise in the future.96
Conclusion
In this chapter, we have reviewed the economic foundations for different types of merger remedies and discussed examples of recent developments and cases illustrating the application of these principles. As antitrust enforcement continues to evolve, the economic analysis of mergers and their remedies are likely to evolve in parallel, with particular attention to growing sectors such as technology, issues with data accumulation and vertical mergers.
Looking ahead, actions and statements by the FTC and DOJ signal greater antitrust scrutiny, which may contribute to continued evolution in the design, proposal and analysis of remedies by merging parties, enforcement agencies and practitioners. For example, in June 2022, FTC Chair Lina Khan stated that the agency will sue to stop anticompetitive mergers rather than negotiate settlements with companies, and further signalled her antipathy towards behavioural remedies.97 In November 2022, the FTC issued a policy statement that it would prohibit unfair methods of competition that might not fall under the scope of the antitrust laws (the Clayton and Sherman Acts).98 In June 2023, the FTC and DOJ proposed changes to the pre-merger notification rules implementing the Hart-Scott-Rodino Act that would require a longer waiting period before consummating certain mergers and would require the parties to provide additional details about the transaction rationale, previous mergers, vertical relationships and other information.99
Concerns around mergers have also expanded to new areas, including their effects on labour, employment and the environment. For example, the FTC and the DOJ have recently increased their scrutiny of the impact of mergers on labour markets.100 In July 2023, the FTC and DOJ released a draft of updated merger guidelines, encompassing both horizontal and vertical mergers and highlighting an increased focus on supply chain effects, multi-sided platforms, monopsonies, labour market conditions and potential competition.101 Other international competition agencies have signalled that they are considering environmental and sustainability issues while designing merger policy, with a member of the UK’s Competition Appeal Tribunal raising a question about the use of behavioural remedies in the case of mergers that help facilitate positive environmental change.102 As the landscape of merger review in the US and globally continues to evolve, any changes in merger policy may affect the design and analysis of merger remedies as well.
Notes
[1] Martha Samuelson is the CEO and chairman, Ishita Rajani is a vice president and Alex Robinson is a manager at Analysis Group, Inc. The authors would like to thank Victoria Hopcroft, John Kumcu, Isaiah West, Yunus Cem Yilmaz and Sam Yu for their contributions to this chapter.
[2] A negotiated settlement between the US Federal Trade Commission (FTC) and the merging parties before the FTC files an administrative complaint is known as a ‘consent order’. A negotiated settlement between the US Department of Justice (DOJ) Antitrust Division and the merging parties is filed to a US district court as ‘a complaint with proposed settlement’. An agency and the merging parties may also reach an agreement during trial.
[3] See, e.g., Joseph J Simons and Makan Delrahim, ‘Hart-Scott-Rodino Annual Report – Fiscal Year 2019’, FTC, Bureau of Competition and DOJ, Antitrust Division 2019, available at https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-bureau-competition-department-justice-antitrust-division-hart-scott-rodino/p110014hsrannualreportfy2019_0.pdf; ‘US District Court Blocks Aetna’s Acquisition of Humana’, DOJ (23 January 2017), available at https://www.justice.gov/opa/pr/us-district-court-blocks-aetna-s-acquisition-humana.
[4] Merger Remedies Manual, DOJ Antitrust Division (September 2020) (DOJ Merger Remedies Manual), available at https://www.justice.gov/atr/page/file/1312416/download, p. 1. The DOJ withdrew its 2020 Merger Remedies Manual in April 2022. Since the DOJ has not provided any replacement yet and this manual is still informative, it is cited throughout this chapter.
[5] Peter Mucchetti, et al., ‘Merger Control in the United States: Overview’, Thomson Reuters (December 2020), available at https://uk.practicallaw.thomsonreuters.com/5-501-2849.
[6] Internal database maintained by Analysis Group, Inc. Time periods are based on fiscal years.
[7] David A Balto and Richard G Parker, ‘The Evolving Approach to Merger Remedies’, FTC (1 May 2020), available at https://www.ftc.gov/es/public-statements/2000/05/evolving-approach-merger-remedies. See also DOJ Merger Remedies Manual, pp. 1–5.
[8] DOJ Merger Remedies Manual, p. 1.
[9] id., p. 2.
[10] Thomas J Rosch, ‘Consent Decrees: Is the Public Getting Its Money’s Worth?’, FTC (7 April 2011), available at https://www.ftc.gov/sites/default/files/documents/public_statements/consent-decrees-public-getting-its-moneys-worth/110407roschconsentdecrees.pdf.
[11] Joseph G Krauss, David J Saylor and Logan M Breed, ‘The Tunney Act: A House Still Standing’, The Antitrust Source (June 2007), available at https://www.hoganlovells.com/~/media/hogan-lovells/pdf/publication/tunneyact_pdf.pdf.
[12] 15 USC §§ 16(e)(1)(A) & (B).
[13] In United States and Plaintiff States v. CVS Health Corporation and Aetna, Inc., Memorandum Opinion, Civil Case No. 18-2340 (RJL) (4 September 2019), pp. 13–14. See also Bryan Koenig, ‘The $69 Billion Questions From The CVS-Aetna Judge’, Law360 (6 June 2019), available at https://www.law360.com/articles/1166632/the-69-billion-questions-from-the-cvs-aetna-judge; Michael A Gleason, et al., ‘It Ain’t Over till It’s Over: Review of DOJ M&A Settlements under the Tunney Act’, The M&A Lawyer, Vol. 23, No. 9 (October 2019).
[14] Thomas J Rosch, op. cit. (footnote 10, above); ‘Public Comments’, FTC, available at https://www.ftc.gov/policy/public-comments.
[15] Loss of head-to-head competition is central to the analysis of unilateral effects in a differentiated product market. Other economic issues may arise in analysing coordinated effects or in a homogeneous product market in which firms compete in quantities. See ‘2023 Draft Merger Guidelines’, US DOJ Antitrust Division (19 July 2023), available at https://www.justice.gov/d9/2023-07/2023-draft-merger-guidelines_0.pdf, pp. 8–9.
[16] United States of America and State of Alabama v. Republic Services, Inc. and Santek Waste Services, LLC, Complaint, Case 1:21-cv-00883 (March 2021).
[17] United States of America, State of Alabama and State of Tennessee v. Republic Services, Inc. and Santek Waste Services, LLC, Final Judgment, Case 1:21-cv-00883-RDM (June 2021); United States of America and State of Alabama v. Republic Services, Inc. and Santek Waste Services, LLC, Complaint, Case 1:21-cv-00883 (March 2021).
[18] ‘Capital Waste and EcoSouth divide and conquer with carve-out assets from Republic/Santek transaction, expanding footprint to three new states’, Kinderhook Industries (6 May 2021), available at https://www.kinderhook.com/press-release/capital-waste-and-ecosouth-divide-and-conquer-with-carve-out-assets-from-republic-santek-transaction-expanding-footprint-to-three-new-states/; United States of America, State of Alabama and State of Tennessee v. Republic Services, Inc. and Santek Waste Services, LLC, Final Judgment, Case 1:21-cv-00883-RDM (June 2021).
[19] Republic also agreed to provide transition services to the divestiture buyers, protections to employ Republic or Santek employees in divested entities and a firewall between employees working on transition services and other Republic and Santek employees. See United States of America, State of Alabama and State of Tennessee v. Republic Services, Inc. and Santek Waste Services, LLC, Final Judgment, Case 1:21-cv-00883-RDM (July 2021); Nadia Dreid, ‘DOJ Deal Lets Two Of Southeast’s Biggest Waste Cos. Merge’, Law360 (1 April 2021), available at https://www.federalregister.gov/documents/2021/04/08/2021-07224/united-states-et-al-v-republic-services-inc-et-al-proposed-final-judgment-and-competitive-impact.
[20] DOJ Merger Remedies Manual, p. 13.
[21] US Department of Justice, ‘Assistant Attorney General Jonathan Kanter of the Antitrust Division Delivers Remarks to the New York State Bar Association Antitrust Section’ (24 January 2022).
[22] DOJ Merger Remedies Manual, p. 14.
[23] id., p. 32.
[24] Overview of ex parte presentation, Sprint Corporation (20 May 2019), available at https://www.sec.gov/Archives/edgar/data/101830/000119312519151128/d738710d425.htm.
[25] United States of America, et al., v. Deutsche Telekom AG, et al., Proposed Final Judgment, Case 1:19-cv-02232 (26 July 2019); DISH and T-Mobile revised and expanded their network access agreement in 2022. ‘DISH and T-Mobile Expand Network Services Partnership’, T-Mobile US Inc. (21 June 2022), available at https://www.t-mobile.com/news/network/dish-t-mobile-expand-network-services; ‘The DISH 5G Network is Now Available to Over 70 Percent of the US Population’, DISH Network Corporation (15 June 2023), available at https://about.dish.com/2023-06-15-The-DISH-5G-Network-is-Now-Available-to-Over-70-Percent-of-the-U-S-Population.
[26] Monica Alleven, 'Dish fires back at T-Mobile over 800 MHz extension request', Fierce Wireless (5 September 2023), available at https://www.fiercewireless.com/wireless/dish-fires-back-t-mobile-over-800-mhz-extension-request.
[27] United States of America, et al., v. Deutsche Telekom AG, et al., Response of Plaintiff United States to Public Comments on the Proposed Final Judgment, Case 1:19-cv-02232 (6 November 2019).
[28] id.
[29] United States and Plaintiff States v. CVS Health Corporation and Aetna, Inc., Complaint, Civil Case No. 18-2340 (RJL) (4 September 2019 [CVS-Aetna Complaint], ¶¶ 15–16, 23–26; United States and Plaintiff States v. CVS Health Corporation and Aetna, Inc., Memorandum Opinion, Civil Case No. 18-2340 (RJL) (4 September 2019) [CVS-Aetna Opinion], pp. 2–3.
[30] CVS-Aetna Complaint, ¶ 29.
[31] id., ¶¶ 1, 36 and 40.
[32] The proposed divestment to WellCare included five major components: (1) Aetna’s individual Medicare and Medicaid prescription drug plan [PDP] contracts; (2) all data relating to Aetna’s individual PDP business; (3) the opportunity for WellCare to hire current Aetna employees with relevant PDP expertise; (4) the option to enter into an agreement wherein CVS would provide services required to manage the divested assets until the end of 2019; and (5) permission for WellCare to use the Aetna brand for such assets until 2019. See CVS-Aetna Opinion, p. 4.
[33] ‘Questions and Answers for the General Public’, DOJ, available at https://www.justice.gov/opa/press-release/file/1099806/download, pp. 3–4. See also CVS-Aetna Opinion, pp. 15–16.
[34] Bryan Koenig, ‘CVS-Aetna Merger Cleared After Unprecedented Court Battle’, Law360 (4 September 2019), available at https://www.law360.com/articles/1189727/cvs-aetna-merger-cleared-after-unprecedented-court-battle. See also CVS-Aetna Opinion, p. 6.
[35] CVS-Aetna Opinion, pp. 13–14.
[36] id., p. 15.
[37] id., p. 18.
[38] id., pp. 18–19, 21.
[39] ‘The FTC’s Merger Remedies 2006-2012’, FTC (January 2017) [FTC’s Merger Remedies 2006–2012], available at https://www.ftc.gov/system/files/documents/reports/ftcs-merger-remedies-2006-2012-report-bureaus-competition-economics/p143100_ftc_merger_remedies_2006-2012.pdf, p. 23.
[40] DOJ Merger Remedies Manual, p. 24.
[41] FTC’s Merger Remedies 2006–2012, op. cit. (footnote 38, above), p. 24.
[42] ‘Cinven agrees to acquire MBCC Admixtures’, Cinven (22 March 2023); ‘Sika Has Agreed to Sell Selected MBCC Group Admixture Assets to Cinven’, GlobeNewswire (22 March 2023), available at https://www.globenewswire.com/en/news-release/2023/03/22/2632598/0/en/SIKA-HAS-AGREED-TO-SELL-SELECTED-MBCC-GROUP-ADMIXTURE-ASSETS-TO-CINVEN.html.
[43] In US and Plaintiff States v. UnitedHealth Group, Inc. and Change Healthcare Inc., Memorandum Opinion, Civil Case No. 1:22-cv-00481-CJN (21 September 2022), pp. 24–25.
[44] See, e.g., ‘Statement of Commissioner Rohit Chopra in the Matter of Linde AG, Praxair, Inc., and Linde PLC’, FTC (22 October 2018), available at https://www.ftc.gov/public-statements/2018/10/statement-commissioner-chopra-matter-linde-ag-praxair-inc-linde-plc.
[45] In the Matter of Dollar Tree, Inc., and Family Dollar Stores, Inc., Decision and Order, FTC, Docket No. C-4530 (17 September 2015), available at https://www.ftc.gov/system/files/documents/cases/150702dollartreedo.pdf.
[46] In the Matter of Dollar Tree, Inc., and Family Dollar Stores, Inc., Application for Approval of Proposed Sale of Dollar Express Assets and Request for Expedited Treatment, FTC, Docket No. C-4530 (30 March 2017), available at https://www.ftc.gov/system/files/documents/cases/dollar_store_-_public_-_20170330_dollar_express_application_for_approval_final3.pdf. See also, Lisa Fickenscher, ‘Dollar Tree accused of squashing spinoff’, New York Post (2 June 2017), available at https://nypost.com/2017/06/02/its-the-battle-of-the-dollar-stores-in-new-lawsuit/.
[47] ‘Mergers: Commission clears acquisition of Fitbit by Google, subject to conditions’, European Commission (17 December 2020), available at https://ec.europa.eu/commission/presscorner/detail/en/IP_20_2484.
[48] id.
[49] ‘Defending competition in a digital age’, European Commission (24 June 2021), available at https://ec.europa.eu/commission/commissioners/2019-2024/vestager/announcements/defending-competition-digital-age_en.
[50] ‘FACT SHEET: Executive Order on Promoting Competition in the American Economy’, The White House (9 July 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/09/fact-sheet-executive-order-on-promoting-competition-in-the-american-economy/.
[51] ‘Justice Department Sues to Block UnitedHealth Group’s Acquisition of Change Healthcare’, US DOJ (24 February 2022); United States of America, State of Minnesota and State of New York v. UnitedHealth Group Inc. and Change Healthcare Inc., Complaint, Case 1:22-cv-00481 (February 2022).
[52] United States of America, et al. v. UnitedHealth Group Inc. and Change Healthcare Inc., Plaintiffs’ Pretrial Brief, Civil Action No. 1:22-cv-00481 (CJN) (July 2022); Susan Morse, ‘Data did not drive acquisition of Change, UnitedHealth says’, Healthcare Finance (13 September 2022), available at https://www.healthcarefinancenews.com/news/data-did-not-drive-acquisition-change-unitedhealth-says; Paige Minemyer, ‘UnitedHealth closes acquisition of Change Healthcare’, Fierce Healthcare (3 October 2022), available at https://www.fiercehealthcare.com/payers/unitedhealth-closes-acquisition-change-healthcare; ‘OptumInsight and Change Healthcare Combine to Advance a More Modern, Information and Technology-Enabled Health Care Platform’, UnitedHealth Group (6 January 2021).
[53] ‘Optum and Change Healthcare Complete Combination’, Optum News (3 October 2022), available at https://www.optum.com/about-us/news/page.hub.optum-and-change-healthcare-complete-combination.html.
[54] Bryan Koenig, ‘DOJ Quietly Abandons UnitedHealth Merger Appeal’, Law360 (20 March 2023), available at https://www.law360.com/articles/1587871/doj-quietly-abandons-unitedhealth-merger-appeal.
[55] Heiko Richter, ‘Prospects of Merger Review in the Digital Age: A Critical Look at the EU, the United States, and Germany’, International Review of Intellectual Property and Competition Law, Vol. 54 (2023), pp. 223–267.
[56] ‘Comments on the Draft Vertical Merger Guidelines Issued by the Department of Justice and the Federal Trade Commission Comments’, American Bar Association (24 February 2020), available at https://www.americanbar.org/content/dam/aba/administrative/antitrust_law/comments/february-2020/comment-22420-ftc-doj.pdf. There were enforcement actions by the FTC and DOJ in eight mergers with a vertical component between July 2018 and April 2020, while the two agencies combined challenged a total of 77 mergers between October 2018 and September 2019; ‘Hart-Scott-Rodino Annual Report: Fiscal Year 2018’, FTC and US DOJ (2018), available at https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-bureau-competition-department-justice-antitrust-division-hart-scott-rodino/fy18hsrreport.pdf; ‘Hart-Scott-Rodino Annual Report: Fiscal Year 2019’, FTC and US DOJ (2019), available at https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-bureau-competition-department-justice-antitrust-division-hart-scott-rodino/p110014hsrannualreportfy2019_0.pdf; Steven C Salop and Daniel P Culley, ‘Vertical Merger Enforcement Actions, 1994–April 2020’, Georgetown University Law Center (2020), available at https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2541&context=facpub.
[57] Vertical Merger Guidelines [VMG], US DOJ and FTC (30 June 2020), available at https://www.ftc.gov/system/files/documents/reports/us-department-justice-federal-trade-commission-vertical-merger-guidelines/vertical_merger_guidelines_6-30-20.pdf. See also Rebecca K Slaughter, ‘Reviving Competition, Part 3: Strengthening the Laws to Address Monopoly Power’, FTC (18 March 2021) [FTC Reviving Competition], available at https://www.ftc.gov/system/files/documents/public_statements/1588320/p180101_prepared_statement_of_ftc_acting_chairwoman_slaughter.pdf, p. 6 (‘Another area in which we can build to more effective enforcement is vertical mergers. To date, vertical mergers analysis has been too reliant on assumed procompetitive benefits. Furthermore, even where competitive concerns are identified, they have nearly always been remedied by behavioral consent decrees. I do not believe this approach to vertical enforcement is adequately capturing the competitive consequences of these transactions’).
[58] ‘Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary’, FTC (15 September 2021), https://www.ftc.gov/news-events/news/press-releases/2021/09/federal-trade-commission-withdraws-vertical-merger-guidelines-commentary; Rebecca K Slaughter, ‘Reviving Competition, Part 3: Strengthening the Laws to Address Monopoly Power’, FTC (18 March 2021) [FTC Reviving Competition], available at https://www.ftc.gov/system/files/documents/public_statements/1588320/p180101_prepared_statement_of_ftc_acting_chairwoman_slaughter.pdf, p. 6.
[59] ‘Proposed Rules’, Federal Register, Vol. 88, No. 124 (29 June 2023), available at https://www.govinfo.gov/content/pkg/FR-2023-06-29/pdf/2023-13511.pdf, pp. 41278–42218.
[60] The guidelines and recent commentary emphasise that the specific types of unilateral and coordinated effects discussed in the VMG are not exhaustive. See VMG, §§ 4–5; FTC Reviving Competition, p. 6 (‘A good starting point to build more effective vertical enforcement would be to reconsider the vertical guidelines issued last year; though the guidelines reasonably reflect past agency practice, they overly emphasize the benefits of vertical mergers, and fail to address a number of important competitive concerns’). Also, the DOJ and FTC continue to emphasise these potential anticompetitive harms in the 2023 Draft Merger Guidelines. See ‘2023 Draft Merger Guidelines’, US DOJ Antitrust Division (19 July 2023), available at https://www.justice.gov/d9/2023-07/2023-draft-merger-guidelines_0.pdf.
[61] VMG, § 4.a.
[62] id., § 4.b.
[63] id., § 5.
[64] See Bruce D Hoffman, ‘Vertical Merger Enforcement at the FTC’, FTC (10 January 2018), available at https://www.ftc.gov/system/files/documents/public_statements/1304213/hoffman_vertical_merger_speech_final.pdf; DOJ Merger Remedies Manual, p. 13. The 2021 dispute between T-Mobile and DISH regarding T-Mobile’s plan to shut down its CDMA services, which many DISH customers use, and DISH’s request for the DOJ’s assistance to resolve this dispute, provide an example of the types of continued monitoring and enforcement of behavioural remedies that may be performed by the agencies. See ‘Form 10-Q’, DISH Network Corporation, Exhibit 99.1, available at https://dish.gcs-web.com/static-files/d0097e8d-56b9-486a-bc0a-1190e7141481.
[65] Christine S Wilson, ‘An Update on FTC Merger Enforcement’, FTC (15 June 2022), available at https://www.ftc.gov/system/files/ftc_gov/pdf/CWilsonUpdateMergerEnforcement.pdf.
[66] DOJ Merger Remedies Manual, pp. 13–17; Bruce D Hoffman, ‘Vertical Merger Enforcement at the FTC’, op. cit. (footnote 62, above), p. 8 (‘But in some cases we believe that a behavioural or conduct remedy can prevent competitive harm while allowing the benefits of integration. For example, in our experience, and as the cases I discussed above suggest, firewalls can prevent information sharing, and nondiscrimination clauses can eliminate incentives to disfavor rivals. The Commission’s recent Remedy Study included four orders related to vertical mergers, and each one succeeded in maintaining competition at pre-merger levels [footnote omitted]. This is a small sample, but it does suggest that we can, and we do, and we have fashioned conduct remedies in vertical mergers that curtail opportunities and incentives for anticompetitive behavior’).
[67] FTC’s Merger Remedies 2006–2012, pp. 7–8, 17. See also Bruce D Hoffman, ‘Vertical Merger Enforcement at the FTC’, op. cit. (footnote 62, above).
[68] ‘Illumina, Inc., and GRAIL, Inc., In the Matter of’, FTC (27 April 2021), available at https://www.ftc.gov/enforcement/cases-proceedings/201-0144/illumina-inc-grail-inc-matter.
[69] In May 2021, after the European Commission embarked on its investigation of the merger in April 2021, the FTC sought to have the US district court complaint dismissed to preserve FTC and judicial resources and instead focus on its in-house trial before an administrative law judge. See Christopher Cole, ‘FTC’s Illumina-Grail Court Case Dropped Despite Cos. ’Protest’, Law360 (1 June 2021), available at https://www.law360.com/articles/1389876; ‘Statement of FTC Acting Bureau of Competition Director Maribeth Petrizzi on Bureau’s Motion to Dismiss Request for Preliminary Relief in Illumina/GRAIL Case’, FTC (20 May 2021), available at https://www.ftc.gov/news-events/news/press-releases/2021/05/statement-ftc-acting-bureau-competition-director-maribeth-petrizzi-bureaus-motion-dismiss-request. See also ‘Illumina Files Action for Annulment of European Commission’s Decision Asserting Jurisdiction to Review GRAIL Acquisition’, Illumina (29 April 2021), available at https://www.illumina.com/company/news-center/press-releases/press-release-details.html?newsid=e2c75c6a-6cbe-4e45-b8a6-6d90d40c253e; ‘Oncology contract terms’, Illumina, available at https://www.illumina.com/areas-of-interest/cancer/test-terms.html?SCID=2021-270ECL5522. See also ‘Letter and Exhibit A – Supply Agreement’, Illumina (29 March 2021), available at https://www.illumina.com/content/dam/illumina-marketing/documents/applications/cancer/illumina-open-offer.pdf.
[70] In the Matter of Illumina, Inc. and GRAIL, Inc., Complaint, Docket No. 9401 (30 March 2021), ¶ 70. See also ‘Illumina/GRAIL – FTC’s First Vertical Merger Challenge in Decades’, Crowell & Moring LLP, available at https://www.crowell.com/NewsEvents/AlertsNewsletters/all/Illumina-Grail-FTCs-First-Vertical-Merger-Challenge-in-Decades.
[71] ‘Illumina Acquires GRAIL to Accelerate Patient Access to Life-Saving Multi-Cancer Early-Detection Test’, Illumina (18 August 2021), available at https://investor.illumina.com/news/press-release-details/2021/Illumina-Acquires-GRAIL-to-Accelerate-Patient-Access-to-Life-Saving-Multi-Cancer-Early-Detection-Test/default.aspx; In the Matter of Illumina, Inc. and GRAIL, Inc., Initial Decision, Docket No. 9401 (9 September 2022).
[72] In the Matter of Illumina, Inc. and GRAIL, Inc., Final Order, Docket No. 9401 (3 April 2023).
[73] In the Matter of Illumina, Inc. and GRAIL, Inc., Respondents’ Application for a Stay Pending Review by a United States Court of Appeals, Docket No. 9401 (4 April 2023).
[74] ‘Mergers: Commission prohibits acquisition of GRAIL by Illumina’, European Commission (6 September 2022), available at https://ec.europa.eu/commission/presscorner/detail/en/ip_22_5364.
[75] Foo Yun Chee, ‘Illumina fights EU order to divest GRAIL’, Reuters (8 February 2023), available at https://www.reuters.com/markets/deals/illumina-fights-eu-order-divest-grail-2023-02-08/; Foo Yun Chee, ‘Illumina fined a record $ mln by EU over GRAIL deal’, Reuters (12 July 2023), available at https://www.reuters.com/markets/deals/eu-regulators-fine-illumina-476-mln-closing-grail-deal-without-green-light-2023-07-12/.
[76] European Commission, 'Commission orders Illumina to unwind its completed acquisition of GRAIL', available at https://ec.europa.eu/commission/presscorner/detail/en/ip_23_4872.
[77] Eleanor Tyler, ‘ANALYSIS: How ‘Litigating the Fix’ Is Upending Merger Review,’ Bloomberg Law (11 May 2023), available at https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-how-litigating-the-fix-is-upending-merger-review; https://globalcompetitionreview.com/article/ftc-adopts-tougher-stance-divestitures; Dan Papscun, ‘Microsoft-Activision Ruling Shows Preemption Strategy Strength’, available at https://news.bloomberglaw.com/health-law-and-business/microsoft-activision-ruling-shows-preemption-strategy-strength.
[78] Eleanor Tyler, ‘ANALYSIS: How ‘Litigating the Fix’ Is Upending Merger Review,’ Bloomberg Law (11 May 2023), available at https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-how-litigating-the-fix-is-upending-merger-review.
[79] In the Matter of Federal Trade Commission and Microsoft Corp. and Activision Blizzard, Inc., Complaint for a Temporary Restraining Order and Preliminary Injunction Pursuant to Section 13(b) of the Federal Trade Commission Act, Case No. 3:23-cv-02880 (12 June 2023).
[80] id.
[81] ‘Microsoft strikes 10-year deal with Nintendo on Call of Duty’, AP News (7 December 2022), available at https://apnews.com/article/microsoft-nintendo-call-of-duty-deal-0dfea66c7e77f9bfd36cf3c1965c57c0. This pledge was further reiterated in federal court by Microsoft; however, no other games were included in this statement. Bonnie Eslinger, ‘Microsoft Exec Makes ‘Call Of Duty’ Pledge At FTC Hearing’, Law360 (23 June 2023), available at https://www.law360.com/articles/1692347.
[82] In July 2023, just days after the US ruling, Microsoft also announced that it had signed a licensing agreement with Sony. ‘Microsoft strikes 10-year deal with Nintendo on Call of Duty’, AP News (7 December 2022), available at https://apnews.com/article/microsoft-nintendo-call-of-duty-deal-0dfea66c7e77f9bfd36cf3c1965c57c0; ‘Microsoft and NVIDIA Announce Expansive New Gaming Deal’, Nvidia (21 February 2023), available at https://nvidianews.nvidia.com/news/microsoft-and-nvidia-announce-expansive-new-gaming-deal; Rohan Goswami and Jordan Novet, ‘Microsoft and Sony sign deal to keep Activision’s Call of Duty on PlayStation’, CNBC (16 July 2023), available at https://www.cnbc.com/2023/07/16/microsoft-and-sony-sign-deal-to-keep-activisions-call-of-duty-on-playstation.html.
[83] In the Matter of Federal Trade Commission and Microsoft Corp. and Activision Blizzard, Inc., Complaint for a Temporary Restraining Order and Preliminary Injunction Pursuant to Section 13(b) of the Federal Trade Commission Act, Case No. 3:23-cv-02880 (12 June 2023).
[84] In the Matter of Federal Trade Commission and Microsoft Corp. et al., Preliminary Injunction Opinion (Redacted Version), Case No. 3:23-cv-02880-JSC (10 July 2023); https://storage.courtlistener.com/recap/gov.uscourts.cand.413969/gov.uscourts.cand.413969.305.0_32.pdf, pp. 40-44.
[85] In the Matter of Federal Trade Commission and Microsoft Corp., and Activision Blizzard, Inc., Order Returning Matter to Adjudication, Docket No. 9412.
[86] ‘Mergers: Commission clears acquisition of Activision Blizzard by Microsoft, subject to conditions’, European Commission (15 May 2023), available at https://ec.europa.eu/commission/presscorner/detail/en/ip_23_2705.
[87] Microsoft has given a similar public offer in the UK. See ‘Anticipated acquisition by Microsoft of Activision Blizzard, Inc.: Final Report’, Competition and Markets Authority (26 April 2023).
[88] ‘EVP Vestager keynote speech at the International Forum of the Studienvereinigung Kartellrecht: “Recent Developments in EU merger control”’, European Commission (25 May 2023), available at https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_23_2923.
[89] ‘Microsoft appeals UK veto of Activision Blizzard takeover’, BBC News (24 May 2023), available at https://www.bbc.com/news/entertainment-arts-65695587; ‘Anticipated acquisition by Microsoft of Activision Blizzard, Inc.: Final Report’, Competition and Markets Authority (26 April 2023).
[90] Microsoft concession a gamechanger that will promote competition’, Competition and Markets Authority (13 October 2023), available at https://www.gov.uk/government/news/microsoft-concession-a-gamechanger-that-will-promote-competition.
[91] Thomas Barrabi, ‘Microsoft closes $75B Activision deal despite lingering FTC challenge’, New York Post (13 October 2023), available at https://fortune.com/2023/10/13/microsoft-69-billion-activision-blizzard-acquisition-ftc-lina-khan-antitrust-video-games/.
[92] Marissa Beck and Fiona M Scott Morton, ‘Evaluating the Evidence on Vertical Mergers’, SSRN (31 December 2020), available at https://ssrn.com/abstract=3554073. See also Margaret E Slade, ‘Vertical Mergers: A Survey of Ex Post Evidence and Ex Ante Evaluation Methods,’ Review of Industrial Organization, Vol. 58, 2021, pp. 493–511; Bruce D Hoffman, ‘Vertical Merger Enforcement at the FTC’, op. cit. (footnote 68, above).
[93] Bryan Koenig, ‘AT&T-Time Warner Expert Defends Turner Arbitration Offer,’ Law360 (16 April 2018), available at https://www.law360.com/articles/1033679.
[94] id.
[95] Pedro Gonzaga and Gabriella Erdei, ‘Vertical Mergers in the Technology, Media and Telecom Sector’, Organisation for Economic Co-operation and Development (7 June 2019), available at https://one.oecd.org/document/DAF/COMP(2019)5/en/pdf, p. 36.
[96] Marissa Beck and Fiona M Scott Morton, ‘Evaluating the Evidence on Vertical Mergers’ (see footnote 88, above). See also Margaret E Slade, ‘Vertical Mergers: A Survey of Ex Post Evidence and Ex Ante Evaluation Methods’, Review of Industrial Organization, Vol. 58, 2021, pp. 493–511; Bruce D Hoffman, ‘Vertical Merger Enforcement at the FTC’, op. cit. (footnote 62, above).
[97] Lina M Khan, ‘Vision and Priorities for the FTC’, Federal Trade Commission (22 September 2021).
[98] ‘Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act: Commission File No. P221202’, Federal Trade Commission (10 November 2022), available at https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyStatement.pdf.
[99] ‘FTC and DOJ Propose Changes to HSR Form for More Effective, Efficient Merger Review’, Federal Trade Commission (27 June 2023), available at https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-doj-propose-changes-hsr-form-more-effective-efficient-merger-review.
[100] ‘Federal Trade Commission and Justice Department Seek to Strengthen Enforcement Against Illegal Mergers’, Federal Trade Commission (18 January 2022), available at https://www.ftc.gov/news-events/news/press-releases/2022/01/federal-trade-commission-justice-department-seek-strengthen-enforcement-against-illegal-mergers.
[101] ‘2023 Draft Merger Guidelines’, US DOJ Antitrust Division (19 July 2023), available at https://www.justice.gov/atr/d9/2023-draft-merger-guidelines.
[102] Alex Bagley, ‘Flexible merger remedies needed to tackle sustainability issues, CAT member claims’, GCR (23 May 2023), available at https://globalcompetitionreview.com/article/flexible-merger-remedies-needed-tackle-sustainability-issues-cat-member-claims.