Federal Trade Commission actions
Litigated merger challenges
In September 2017, Otto Bock HealthCare North America, Inc (Ottobock) acquired FIH Group Holdings, LLC, the owner of Freedom Innovations, in a transaction that was not reportable under the Hart-Scott-Rodino Act. 1 In December 2017, the Federal Trade Commission (FTC) issued an administrative complaint challenging the merger and alleging that the transaction harmed competition in the US market for microprocessor prosthetic knees (MPKs). 2 The complaint alleged that the merger eliminated competition between Ottobock and its most ‘significant and disruptive competitor’ with regard to MPKs. 3
MPKs use microprocessors to adjust the prosthetic joint as patients walk, improving stability and decreasing pain for amputees. Doctors and prosthetists typically prescribe MPKs to patients with above-the-knee amputations and relatively high mobility. The FTC noted in its complaint that it typically takes firms two years to develop a MPK technology, making it unlikely that entry by other competitors would resolve some of the effects of the merger. 4 Ottobock contended that efficiencies resulting from the merger would outweigh any anticompetitive effects and that Freedom Innovations was a failing firm at the time of the acquisition. 5 Though Ottobock initially took steps to integrate the Freedom Innovations business, it subsequently agreed to hold the business separate pending the FTC litigation. 6
On 29 April 2019, Administrative Law Judge D Michael Chappell upheld the FTC’s administrative complaint. 7 Judge Chappell found that prior to the merger, competition between Ottobock and Freedom Innovations had spurred innovation and enabled clinic customers to negotiate lower prices. He wrote, ‘the evidence in this proceeding proves that the acquisition will significantly increase concentration in the relevant MPK market, which gives rise to a presumption that the acquisition may substantially lessen competition.’ 8 Judge Chappell also issued an order that requires Ottobock to divest Freedom Innovations, with potential exemptions for certain assets, to an approved buyer within 90 days of the order becoming final. 9 The order requires Ottobock to continue to hold Freedom Innovations assets separately. On 8 May 2019, Ottobock filed a notice of appeal stating that it would appeal the entirety of the administrative law judge’s initial decision and order. 10
Mergers abandoned due to enforcement actions
In April 2017, Wilhelmsen Maritime Services (Wilhelmsen) announced that it would acquire Drew Marine Group’s (Drew) technical solutions business in a transaction valued at US$400 million. 11 Wilhelmsen, based in Norway, and Drew, based in New Jersey, are two of the largest suppliers of chemicals for the maritime industry. Their maritime chemicals and services are used by tankers, container ships, bulk carriers, cruise ships and military support vessels to maintain on-board equipment.
The FTC filed an administrative complaint against Wilhelmsen on 22 February 2018, alleging that the proposed acquisition would significantly reduce competition in the marine water treatment chemicals and services market for global fleets. 12 The complaint identified Wilhelmsen and Drew, respectively, as the first and second largest suppliers of water treatment chemicals and services to global fleets. Further, the complaint identified several competitive aspects of their business that had led to better prices and services for their customers, including product scope, quality and consistency, technical service capability and global distribution footprint. The FTC also sought a preliminary injunction against the acquisition in federal district court. 13 While the preliminary injunction was pending, the administrative bench trial began on 29 May 2018. The merging parties stated that they would abandon the transaction if the FTC’s preliminary injunction was granted. 14
In July 2018, Judge Tanya S Chutkan granted the preliminary injunction, concluding that the parties were each other’s primary competitors. 15 Judge Chutkan further held that the FTC had established a prima facie case of anticompetitiveness and that the defendants’ economic efficiency arguments were insufficient to rebut the presumption. Shortly thereafter, Wilhelmsen announced that it would abandon the transaction. 16
In February 2017, Tronox Limited announced it had reached a definite agreement to acquire Cristal’s titanium dioxide (TiO2) business in an acquisition valued at US$1.673 billion. 17 TiO2 is a white pigment that is used in a variety of products such as paint, industrial coatings, plastic and paper. Tronox announced that, ‘The combination of the TiO2 businesses of Tronox and Cristal creates the world’s largest and most highly integrated TiO2 pigment producer with assets and operations on six continents.’ 18
On 5 December 2017, the FTC filed an administrative complaint challenging the proposed transaction. 19 The complaint asserted that the merger of these two out of the three largest TiO2 producers in the United States and Canada would yield anticompetitive effects in the industry, which the FTC and the US Court of Appeals for the Third Circuit previously characterised as an oligopoly with ‘substantial barriers to entry’. 20 Further, the FTC alleged that the merger would allow the few remaining other suppliers of TiO2 to restrict production and raise prices. 21 On 10 July 2018, the FTC also sought a preliminary injunction in federal district court. 22
The district court granted a preliminary injunction on 5 September 2018. 23 Following this decision, on 14 December 2018, Judge Chappell issued an initial decision upholding the complaint and requiring the parties to terminate the proposed transaction. Judge Chappell held that there was a strong prima facie case that the transition would substantially lessen competition in the TiO2 market and increase the likelihood of coordinated effects. 24
After 16 months of litigation, Tronox reached a settlement agreement with the FTC in April 2019. Under the proposed consent decree, Tronox was required to divest Cristal’s North American TiO2 business to INEOS, another multinational chemical manufacturer, within 30 days of the close of the acquisition. 25
Non-merger enforcement efforts
On 17 January 2017, the FTC filed a complaint in federal district court charging Qualcomm Inc with using anticompetitive tactics to maintain its monopoly in the supply of baseband processor chips, a semiconductor device used in mobile phones and other consumer products. 26 Qualcomm’s patents over its chip technology have been adopted by standards-setting organisations for the telecommunications industry, in exchange for Qualcomm’s commitment to license its patents on fair, reasonable and non-discriminatory (FRAND) terms. The FTC alleged that Qualcomm harmed competition by refusing to sell baseband processor chips without a patent licence that came with high royalties, refusing to license its patents to its competitors in violation of FRAND commitments and entering exclusive dealing relationships with Apple, Inc.
The court held a 10-day bench trial in the Northern District of California beginning on 4 January 2019. 27 On 2 May, the Department of Justice (DOJ) filed a statement of interest in the suit, encouraging presiding Judge Lucy H Koh to order additional briefing and hold a hearing on issues related to a remedy, if the court should find Qualcomm liable on any FTC claims. 28 The DOJ cautioned that, ‘there is a plausible prospect that an overly broad remedy in this case could reduce competition and innovation in markets for 5G technology and downstream applications that rely on that technology.’ 29
On 21 May 2019, Judge Koh found that Qualcomm was liable under the Federal Trade Commission Act for violating the Sherman Act and granted a permanent injunction preventing Qualcomm from ‘engaging in similar and related conduct in the future’. 30 Specifically, the court ordered that Qualcomm not condition supply of its chips on the basis of a customer’s licence status; renegotiate licence terms with customers in good faith; make licences available to chip suppliers on FRAND terms; and other related requirements. 31 The day after the ruling, Qualcomm announced that it will appeal the decision. 32
One week after Judge Koh released her decision, Christine Wilson, one of the five commissioners of the FTC, wrote an article for the Opinion section of The Wall Street Journal to publicly express her alarm over certain aspects of Koh’s decision. 33 Addressing Judge Koh’s reasoning that, ‘Qualcomm itself has licensed its [patents] to rival chip makers, and therefore had a duty . . . to continue doing so’, 34 Wilson cautioned that, ‘[b]y this logic . . . if a company ever sells any product to any competitor, it then could have a perpetual antitrust obligation to sell every product to every competitor’. Further, Wilson criticised Judge Koh for what she perceived to be overbroad remedies that require Qualcomm to renegotiate contracts with customers and competitors around the world, as opposed to typical DOJ and FTC practice to restrict remedies to the United States. 35
Facebook and Amazon
Following public calls from politicians and consumer advocates to break up big technology companies, it has been reported that the FTC is preparing to mount investigations into several industry players, including Facebook and Amazon. The nature of any potential investigation is not public at this time, and representatives from the companies have declined to comment. Anonymous sources have reported that DOJ and FTC officials met in recent weeks to discuss which agency would take jurisdiction over each of several major technology companies, and agreed that the FTC would lead any investigation into Amazon and Facebook. 36 In addition to potential FTC and DOJ inquiries, the House Judiciary Committee has announced that it has commenced its own investigation into potentially anticompetitive practices among the leaders of digital markets. 37
In December 2017, The Walt Disney Company (Disney) announced it would acquire Twenty-First Century Fox, Inc (Fox). The parties subsequently announced they had signed an amended agreement valued at US$71.3 billion in June 2018, following a bidding war with Comcast for Fox. 38
On 27 June 2018, the DOJ filed (i) a complaint to enjoin the proposed transaction, (ii) a hold separate stipulation and order, and (iii) a proposed final judgment, designed to eliminate perceived anticompetetive effects of the transaction. Under the proposed final judgment, the DOJ would approve the transaction subject to divestitures of Fox’s regional sports networks. DOJ alleged that Disney and Fox compete to sell cable sports programming licences to multichannel video programming distributors (MVPDs) in several local markets. Because of this competition, the DOJ contended that the proposed acquisition would result in higher prices for MVPDs for cable sports programming.
Under the consent decree, Disney was required to divest all of Fox’s interests in the 22 regional sports networks within 90 days of closing as a condition of the acquisition. 39 Disney and Fox were required to ensure that each Fox regional sports network continued to operate as a separate and independent entity until the completion of the divestitures. 40 The transaction was completed in March 2019. 41
On 4 September 2017, United Technologies Corp (UTC) announced it reached a definitive agreement to acquire Rockwell Collins in a transaction valued at US$30 billion. 42 Over one year later, on 1 October 2018, the DOJ announced that it had entered into a consent decree with the parties that required UTC to divest two of its aerospace businesses. 43 First, UTC was required to divest Rockwell Collins’ pneumatic ice protection system, which removes ice that accumulates on the wings of aircraft. The DOJ stated that without this divestiture, the acquisition would combine two out of only three pneumatic ice protection system businesses in the world. Second, UTC was required to divest its trimmable horizontal stabiliser actuators (THSAs) business. THSAs adjust the angle of the control surface at the rear of an aircraft during flight to maintain proper altitude. UTC and Rockwell Collins were two of the leading suppliers of THSAs worldwide. 44 UTC completed the acquisition in November 2018. 45
In December 2017, CVS Health announced that it would acquire Aetna, Inc in a transaction valued at US$69 billion. 46 Shortly thereafter, several interested industry parties, including the American Medical Association, wrote letters to Assistant Attorney General Makan Delrahim to express concern about the merger of the country’s largest retail pharmacy chain and the third-largest health insurer in the country. 47 In October 2018, the DOJ approved the transaction subject to Aetna’s divestiture of its Medicare Part D prescription drug plan for individuals business. 48 CVS Health and Aetna are significant competitors in the market for Medicare Part D prescription drug plans. The DOJ contended that, without the required divestiture, the combination would result in increased prices, decreased innovation and lower service quality. The consent decree also required that Aetna assist WellCare, the divestiture buyer, with operating plans during the transition period and transferring affected customers. The parties completed the transaction in November 2018. 49 The Aetna brand name will continue to be used with regard to CVS Heath’s health insurance products, and Aetna will operate as a stand-alone business within CVS Heath. 50
Several months after the close of the transaction, Judge Richard J Leon of the DC Circuit scheduled a highly unusual multi-day hearing to review the DOJ’s settlement with CVS. 51 Under the Tunney Act, a proposed merger settlement must be approved by a federal court, which will make a determination about whether the settlement is in the public interest. Tunney Act hearings are typically cursory formalities. However, in a virtually unprecedented move, Judge Leon allowed witness testimony from six witnesses: three critics and three proponents of the merger. He did not allow any cross-examination of the witnesses and he rejected a DOJ request to present its own witnesses. CVS unsuccessfully moved to exclude testimony from multiple witnesses from the proceedings and argued that no judge had ever before allowed witness testimony in a Tunney Act hearing. 52 Regarding the hearing, Judge Leon has stressed that, ‘this hearing is not a trial . . . [it] is merely an opportunity for the parties and the amici to provide the Court with whatever additional information and analysis they believe will aid the Court in determining whether the Government’s proposed final judgment is in the public interest.’ 53
The hearing commenced on 4 June 2019. It is not clear what would happen next if Judge Leon rejects the settlement. Thus far, CVS has proceeded with business as if unaffected by the pending hearings. 54
Non-merger enforcement efforts
Atrium Health (formerly Carolinas HealthCare System)
In June 2016, the DOJ and the North Carolina attorney general brought a suit against Carolinas HealthCare System (CHS) for using anticompetitive steering restrictions in contracts between commercial health insurers and its providers. 55 The DOJ argued that these contracts prevented insurers from offering networks to patients that did not include CHS, and that they placed restrictions on insurers that made it impossible for them to provide complete and accurate information to patients about CHS regarding its competitors. 56 Further, the DOJ argued that insurers have attempted to negotiate the removal of these steering provisions in their contracts with CHS on multiple occasions, but were not able to on account of CHS’s market dominance. 57 After two years of litigation, on 15 November 2018, the DOJ and the North Carolina attorney general settled with Atrium Health (Atrium), formerly known as CHS. 58 The settlement prohibits Atrium from using anticompetitive steering restrictions in contracts between commercial health insurers and its providers. 59
According to anonymous reports from employees, Google is currently facing an antitrust probe by the DOJ. The nature of the investigation is not public at this time, and representatives from Google have declined to comment. However, Google has recently faced a series of international antitrust investigations and fines relating to its practices of promoting its shopping services over competitors’ and requiring phone makers that use Android software to prepare their phones with other Google applications. 60
Historically, the FTC has investigated antitrust concerns relating to Google. In 2013, the FTC mounted an investigation into Google that primarily focused on the company’s practice of highlighting its own services above those of their competitors in the results of Google’s search engine. 61 The FTC concluded their investigation in 2013 without any charges as to search algorithm bias. 62 The anonymous sources have reported that the DOJ and the FTC met recently to discuss ceding jurisdiction over Google to the DOJ. 63
* The author would like to thank Sarah M Levine, who was a summer associate in Cravath, Swaine & Moore’s litigation department, for her assistance with this chapter.
1 Press Release, Ottobock, ‘Ottobock Issues Statement on U.S. Federal Trade Commission Decision Regarding Acquisition of Freedom Innovations’ (May 7, 2019), available at www.ottobock.com/en/press/press-releases/ottobock-us-ftc-freedom-innovations.html.
2 Press Release, Fed. Trade Comm’n, ‘FTC Challenges Consummated Merger of Companies That Make Microprocessor Prosthetic Knees’ (December 20, 2017), www.ftc.gov/news-events/press-releases/2017/12/ftc-challenges-consummated-merger-companies-make-microprocessor.
3 Complaint at 1, In the Matter of Otto Bock HealthCare North America, Inc., No. 9378 (FTC December 20, 2017), available at www.ftc.gov/system/files/documents/cases/otto_bock_part_3_complaint_redacted_public_version.pdf.
4 See footnote 2.
5 Answer at 57-58, 64-67, In the Matter of Otto Bock HealthCare North America, Inc., No. 9378 (FTC January 10, 2018), available at www.ftc.gov/system/files/documents/cases/180110ottobockanswer.pdf.
6 See footnote 2.
7 Press Release, Fed. Trade Comm’n, ‘Administrative Law Judge Upholds FTC’s Complaint Challenging Consummated Merger of Companies that Make Microprocessor Prosthetic Knees’ (May 7, 2019), available at www.ftc.gov/news-events/press-releases/2019/05/administrative-law-judge-upholds-ftcs-complaint-challenging.
8 Initial Decision at 2, In the Matter of Otto Bock HealthCare North America, Inc., No. 9378 (FTC May 6, 2019), available at www.ftc.gov/system/files/documents/cases/docket_9378_initial_decision_public_5-7-19.pdf.
9 See footnote 7.
10 Respondent’s Notice of Appeal, In the Matter of Otto Bock HealthCare North America, Inc., No. 9378 (FTC May 8, 2019), available at www.ftc.gov/system/files/documents/cases/d09378_rs_notice_of_appealpublic594588.pdf.
11 Press Release, Wilhelmson, ‘Wilhelmsen Acquires Drew Marine Technical Solutions’ (April 26, 2017), available at www.wilhelmsen.com/media-news-and-events/press-releases/2017/wilhelmsen-acquires-drew-marine-technical-solutions/.
12 Press Release, Fed. Trade Comm’n, ‘FTC Challenges Wilhelmsen Maritime Services’ Proposed Acquisition of Competitor Drew Marine Group’ (February 23, 2018), available at www.ftc.gov/news-events/press-releases/2018/02/ftc-challenges-wilhelmsen-maritime-services-proposed-acquisition.
13 Fed. Trade Comm’n v Wilh. Wilhelmsen Holding ASA, 341 F. Supp. 3d 27, 39 (D.D.C. 2018).
14 Respondent’s Expedited Motion for Continuance of Administrative Hearing at 1, In the Matter of Wilh. Wilhelmsen Holdings ASA, No. 9380 (FTC May 15, 2018), available at www.ftc.gov/system/files/documents/cases/051518respondentsmotionhearing590764.pdf.
15 id.; see also Press Release, Fed. Trade Comm’n, ‘Statement by FTC Bureau of Competition Acting Deputy Director Haidee L. Schwartz on the U.S. District Court’s Grant of a Preliminary Injunction and Announcement from Wilhelmsen Maritime Services that It Will Abandon Acquisition of Drew Marine Group’ (July 23, 2018), available at www.ftc.gov/news-events/press-releases/2018/07/statement-ftc-bureau-competition-acting-deputy-director-haidee-l.
16 Statement by FTC Bureau of Competition Acting Deputy Director Haidee L. Schwartz, see footnote 15.
17 Press Release, Tronox, ‘Investors: Tronox Announces Definitive Agreement to Acquire Cristal TiO(2) Business’ (February 21, 2017), available at http://investor.tronox.com/news-releases/news-release-details/tronox-announces-definitive-agreement-acquire-cristal-tio2.
19 Press Release, Fed. Trade Comm’n, ‘FTC Challenges Proposed Merger of Major Titanium Dioxide Companies’ (December 5, 2017), available at www.ftc.gov/news-events/press-releases/2017/12/ftc-challenges-proposed-merger-major-titanium-dioxide-companies.
20 Complaint at 2, In the Matter of Tronox Limited, No. 9377 (FTC December 5, 2017), available at www.ftc.gov/system/files/documents/cases/docket_no_9377_tronox_cristal_part_3_administrative_complaint_redacted_public_version_12072017.pdf.
21 See footnote 19.
23 Press Release, Fed. Trade Comm’n, ‘Administrative Law Judge Upholds FTC’s Complaint Allegations that Merger of Major Titanium Dioxide Companies would have Harmed Competition’ (December 17, 2018), available at www.ftc.gov/news-events/press-releases/2018/12/administrative-law-judge-upholds-ftcs-complaint-allegations.
24 Initial Decision at 1, In the Matter of Tronox Limited, No. 9377 (FTC December 14, 2018), available at www.ftc.gov/system/files/documents/cases/docket_9377_tronox_et_al_initial_decision_redacted_public_version_0.pdf.
25 Press Release, Fed. Trade Comm’n, ‘FTC Requires Divestitures by Tronox and Cristal, Suppliers of Widely Used White Pigment, Settling Litigation over Proposed Merger’ (April 10, 2019), available at www.ftc.gov/news-events/press-releases/2019/04/ftc-requires-divestitures-tronox-cristal-suppliers-widely-used.
26 Press Release, Fed. Trade Comm’n, ‘FTC Charges Qualcomm With Monopolizing Key Semiconductor Device Used in Cell Phones’ (January 17, 2017), available at www.ftc.gov/news-events/press-releases/2017/01/ftc-charges-qualcomm-monopolizing-key-semiconductor-device-used.
27 Findings of Fact and Conclusions of Law at 2, FTC v Qualcomm Inc., No. 17-CV-00220 (N.D. Cal. May 21, 2019), ECF No. 1490, available at www.ftc.gov/system/files/documents/cases/qualcomm_findings_of_fact_and_conclusions_of_law.pdf.
29 Statement of Interest of the United States of America, id. at 5.
30 Press Release, Fed. Trade Comm’n, ‘Statement by Federal Trade Commission Bureau of Competition Director Bruce Hoffman on District Court Ruling in Agency’s Monopolization Case against Qualcomm’ (May 22, 2019), available at www.ftc.gov/news-events/press-releases/2019/05/statement-federal-trade-commission-bureau-competition-director; also see Findings of Fact and Conclusions of Law at 224-225, FTC v Qualcomm Inc., No. 17-CV-00220 (N.D. Cal. May 21, 2019), ECF No. 1490, available at www.ftc.gov/system/files/documents/cases/qualcomm_findings_of_fact_and_conclusions_of_law.pdf.
31 Findings of Fact and Conclusions of Law at 227-233, FTC v Qualcomm Inc., No. 17-CV-00220 (N.D. Cal. May 21, 2019), ECF No. 1490, available at www.ftc.gov/system/files/documents/cases/qualcomm_findings_of_fact_and_conclusions_of_law.pdf.
32 Press Release, Qualcomm, ‘Qualcomm Strongly Disagrees with Ruling in FTC Case and Will Seek Immediate Stay and Appeal of Ruling’ (May 22, 2019), available at www.qualcomm.com/news/releases/2019/05/22/qualcomm-strongly-disagrees-ruling-ftc-case-and-will-seek-immediate-stay.
33 Christine Wilson, ‘A Court’s Dangerous Antitrust Overreach’, The Wall Street Journal (May 28, 2019), available at www.wsj.com/articles/a-courts-dangerous-antitrust-overreach-11559085055.
34 id. (internal quotations omitted).
36 Diane Bartz, ‘U.S. Justice Department Prepares Google Antitrust Probe: Sources’, Reuters (May 31, 2019), available at www.reuters.com/article/us-google-doj-probe/us-justice-department-prepares-google-antitrust-probe-sources-idUSKCN1T22SU.
37 Cecilia Kang, David Streitfeld and Annie Karni, ‘Antitrust Troubles Snowball for Tech Giants as Lawmakers Join In’, The New York Times (June 3, 2019), available at www.nytimes.com/2019/06/03/technology/facebook-ftc-antitrust.html.
38 Press Release, The Walt Disney Company, ‘The Walt Disney Company Signs Amended Acquisition Agreement To Acquire Twenty-First Century Fox, Inc., For $71.3 Billion In Cash And Stock‘ (June 20, 2018), available at www.thewaltdisneycompany.com/the-walt-disney-company-signs-amended-acquisition-agreement-to-acquire-twenty-first-century-fox-inc-for-71-3-billion-in-cash-and-stock/; Liana B. Baker and Carl O’Donnell, ‘Comcast Concedes to Disney in Bidding War for Fox Assets’, Reuters (July 19, 2018), available at www.reuters.com/article/us-fox-m-a-comcast/comcast-concedes-to-disney-in-bidding-war-for-fox-assets-idUSKBN1K91TD.
39 Proposed Final Judgment at 5, United States v Walt Disney Company, No. 18-CV-05800 (S.D.N.Y. June 27, 2018) ECF No. 3-1; also see Press Release, Dep’t of Justice, ‘The Walt Disney Company Required to Divest Twenty-Two Regional Sports Networks in Order to Complete Acquisition of Certain Assets from Twenty-First Century Fox’ (June 27, 2018), available at www.justice.gov/opa/pr/walt-disney-company-required-divest-twenty-two-regional-sports-networks-order-complete.
41 Press Release, The Walt Disney Company, ‘Disney’s Acquisition of 21st Century Fox Will Bring an Unprecedented Collection of Content and Talent to Consumers Around the World’ (March 19, 2019), available at www.thewaltdisneycompany.com/disneys-acquisition-of-21st-century-fox-will-bring-an-unprecedented-collection-of-content-and-talent-to-consumers-around-the-world/.
42 Press Release, United Technologies, ‘United Technologies To Acquire Rockwell Collins For $30 Billion’ (September 4, 2017), available at www.utc.com/news/news-center/2017/09/04/united-technologies-to-acquire-rockwell-collins-for-30-billion.
43 Press Release, Dep’t of Justice, ‘Justice Department Requires UTC to Divest Two Aerospace Businesses to Proceed with Acquisition of Rockwell Collins’ (October 1, 2018), available at www.justice.gov/opa/pr/justice-department-requires-utc-divest-two-aerospace-businesses-proceed-acquisition-rockwell.
45 Press Release, United Technologies, ‘United Technologies Announces Intention to Separate Into Three Independent Companies; Completes Acquisition of Rockwell Collins’ (November 26, 2018), available at www.utc.com/en/news/news-center/2018/11/26/united-technologies-announces-intention-to-separate-into-three-independent-compan.
46 Press Release, CVS, ‘CVS Health to Acquire Aetna’ (December 3, 2017), available at https://cvshealth.com/newsroom/press-releases/cvs-health-acquire-aetna-combination-provide-consumers-better-experience.
47 American Medical Association, ‘Statement Re: Competition in the Pharmaceutical Supply Chain: The Proposed Merger of CVS Health and Aetna’ (February 27, 2018), available at https://s3.amazonaws.com/assets.fiercemarkets.net/public/004-Healthcare/2018-2-17+AMA+Statement+for+the+Record+-+CVS-Aetna+Merger+-+House+Judici....pdf.
48 Press Release, Dep’t of Justice, ‘Justice Department Requires CVS and Aetna to Divest Aetna’s Medicare Individual Part D Prescription Drug Plan Business to Proceed with Merger’ (October 10, 2018), available at www.justice.gov/opa/pr/justice-department-requires-cvs-and-aetna-divest-aetna-s-medicare-individual-part-d.
49 Press Release, Aetna, ‘CVS Health Completes Acquisition of Aetna, Marking the Start of Transforming the Consumer Health Experience’ (November 28, 2018), available at news.aetna.com/news-releases/2018/11/cvs-health-completes-acquisition-of-aetna-marking-the-start-of-transforming-the-consumer-health-experience/.
51 Brent Kendall, ‘Federal Judge to Hold Hearings on Decision to Allow CVS-Aetna Merger’, The Wall Street Journal (April 5, 2019), available at www.wsj.com/articles/judge-to-allow-witness-testimony-on-cvs-aetna-merger-11554494817.
52 CVS’s Motion to Exclude at 9, United States v CVS Health Corporation, No. 18-CV-2340 (D.D.C. May 13, 2019), ECF No. 81.
53 Memorandum Order at 3, United States v CVS Health Corporation, No. 18-CV-2340 (D.D.C. May 13, 2019), ECF No. 90.
54 Brent Kendall and Anna Wilde Mathews, ‘CVS Mounts Defense of Aetna Deal on Two Fronts’ (June 3, 2019), available at www.wsj.com/articles/cvs-mounts-defense-of-aetna-deal-on-two-fronts-11559473201?mod=article_inline.
55 Complaint at 1, United States v Charlotte-Mecklenburg Hospital Authority, No. 16-CV-00311 (W.D. N.C. June 9, 2016), ECF No. 1.
56 Press Release, Dep’t of Justice, ‘Atrium Health Agrees to Settle Antitrust Lawsuit and Eliminate Anticompetitive Steering Restrictions’ (November 15, 2018), available at www.justice.gov/opa/pr/atrium-health-agrees-settle-antitrust-lawsuit-and-eliminate-anticompetitive-steering.
57 Complaint at 8, United States v Charlotte-Mecklenburg Hospital Authority, No. 16-CV-00311 (W.D. N.C. June 9, 2016), ECF No. 1.
58 See footnote 56.
59 Press Release, Atrium Health, ‘DOJ Lawsuit Ends with No Financial Penalty or Admission of Wrongdoing for Atrium Health’ (November 15, 2018), available at https://atriumhealth.org/about-us/newsroom/news/2018/11/doj-lawsuit-ends-with-no-financial-penalty-or-admission-of-wrongdoing-for-atrium-health.
60 Gerrit De Vynck and David McLaughlin, ‘Google, Facing U.S. Antitrust Probe, Knows How to Defend Itself’, Bloomberg (June 3, 2019), available at www.bloomberg.com/news/articles/2019-06-03/google-has-antitrust-playbook-ready-for-doj-after-eu-challenges.
61 Press Release, FTC, ‘Google Agrees to Change Its Business Practices to Resolve FTC Competition Concerns In the Markets for Devices Like Smart Phones, Games and Tablets, and in Online Search’ (January 3, 2013), available at www.ftc.gov/news-events/press-releases/2013/01/google-agrees-change-its-business-practices-resolve-ftc.
62 Press Release, Google, ‘The Federal Trade Commission Closes its Antitrust Review’ (January 3, 2013), available at https://googleblog.blogspot.com/2013/01/the-federal-trade-commission-closes-its.html.
63 Diane Bartz, ‘U.S. Justice Department Prepares Google Antitrust Probe: Sources’, Reuters (May 31, 2019), available at www.reuters.com/article/us-google-doj-probe/us-justice-department-prepares-google-antitrust-probe-sources-idUSKCN1T22SU.