United States: economist perspective

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Department of Justice is the enforcement authority for United States. Read their profile.

Federal Trade Commission is the enforcement authority for United States. Read their profile


Overview of agencies

The Antitrust Division of the US Department of Justice (DOJ) and Federal Trade Commission (FTC) have overlapping jurisdiction to investigate mergers and business practices that may have adverse effects on competition. While their enforcement powers are similar, certain important differences exist. Both investigate mergers under the merger control provisions of the Clayton Act and can bring enforcement actions to block proposed transactions or unwind consummated transactions. Both also enforce price fixing, monopolisation and attempted monopolisation under the Sherman Act. The FTC, however, has an additional tool – section 5 of the Federal Trade Commission Act, which declares illegal unfair or deceptive trade practices. The FTC lacks criminal enforcement powers, however, and all criminal prosecutions are handled by the DOJ. Also, the FTC can bring cases in federal court or before its administrative law judges (ALJs) whose findings are subject to review by the Commission.

The DOJ and FTC have allocated responsibility between themselves for different sectors of the economy, with the DOJ focusing on industries such as chemicals, manufacturing, telecoms, banking and transportation, and the FTC focusing on industries such as healthcare, pharmaceuticals, food and retail. However, they share responsibility for investigations pertaining to certain industries and allocate specific investigations in these industries. For example, both agencies are investigating Big Tech firms, with the FTC having an active litigation against Meta and the DOJ having an active litigation against Google.

In addition to the DOJ and FTC, certain other federal agencies such as the Federal Communications Commission, the Federal Energy Regulatory Commission, the Department of Transportation, the Department of Defense, the Comptroller of the Currency and the Federal Reserve Board have varying roles in merger reviews related to their sectoral focus, ranging from providing advice to the DOJ or FTC to approving transactions or parts of transactions.

Individual states also have their own competition statutes. While states usually work in tandem with the federal competition agencies, state attorneys general (AGs) may decide to take actions alone or as part of a coalition of states. Companies also may face antitrust litigation brought by private parties, sometimes as a class action (especially in price fixing cases).

Recent developments

Concerns have been expressed about a lack of competition across numerous industries in the United States. The FTC and DOJ have become substantially more active in this environment. Recent antitrust developments stemming from ramped-up federal agency actions, state actions and ongoing private litigation include:

  • enforcement re-imagined – antitrust enforcement as it has been practised over the past 40 years is being challenged as having been insufficient to address competition and concentration issues in the modern economy;
  • overhaul of FTC practices and positions – under current leadership, the FTC has changed long-standing practices ranging from its analytical framework to its operational policies and procedures, including a new policy statement regarding section 5 of the FTC Act, though there has been push-back from courts and Congress;
  • focus on labour issues – the federal agencies have stepped up their work related to competition in labour markets, including criminal prosecutions of individuals relating to the alleged use of wage fixing and “no-poach” agreements, and the FTC has proposed a rule prohibiting most non-compete clauses in employment contracts;
  • agencies’ more aggressive stance in litigation – both the FTC and DOJ have sought to expand the types of mergers and behaviour challenged in court or requiring remedy, including those involving nascent competitors, potential competition and vertical mergers;
  • Big Tech investigations and litigations – the federal agencies and/or states have active litigations with Google, Meta and Amazon, with additional investigations ongoing and the potential for additional litigations; and
  • new merger guidelines and HSR requirements – the federal agencies have proposed new merger guidelines that are completely reformed from prior versions and reflect the priorities of the neo-Brandeisian perspective; also, the agencies now seek substantially more information than before in the Hart–Scott–Rodino (HSR) pre-merger notification process. Both changes are likely to chill merger activity.

Enforcement re-imagined

Fundamental questions about the role of antitrust in the economy are shaping competition policy and the application of that policy. During the past 40 years, antitrust cases have been evaluated using the consumer welfare standard and based on rigorous analysis evaluating impacts of conduct on competition and consumers. However, concerns about concentration and corporate power have underpinned a neo-Brandeisian view that seeks to recast antitrust practice:

Around forty years ago … we decided to experiment with a different approach. Policymakers bought into a set of assumptions: that markets tend to be perfectly competitive and self-correcting; that monopoly power is generally fleeting; and that a hands-off approach to antitrust and competition policy would deliver great efficiencies that would outweigh any costs.

Today it has become apparent that this approach delivered an economy that all too often has failed to benefit most Americans.[2]

Tensions between the recently practised analytical approach to antitrust analysis and a more expansive approach are expected to continue to unfold in the coming years within the competition agencies, in courts and potentially in new legislation.

Capturing and promoting this atmosphere of change, President Biden issued an Executive Order on 9 July 2021, calling for a “whole-of-government” effort to promote competition in the American economy.[3] The Executive Order indicates that a fair, open and competitive marketplace is the cornerstone of the American economy and that competitive marketplaces support prosperity, the reinvestment in enterprises, the ability to experiment and innovate and the availability of more choices and lower prices for consumers. The Executive Order expresses concerns that excessive market concentration threatens economic liberties and the welfare of workers, farmers, small businesses, start-ups and consumers.

The Executive Order states that as industries have consolidated over the past several decades, competition has weakened, economic problems have emerged and federal government inaction has contributed to these problems. The Executive Order cites to problems including non-compete agreements that restrict worker ability to switch jobs, occupational licensing requirements that limit worker mobility between states, dominant internet platforms that exclude market entrants, hospital consolidation that has resulted in higher prices and fewer choices, and telecommunication and financial services provider consolidation resulting in services being too expensive for consumers, among other concerns. In specifically addressing internet platforms, the Executive Order states:

[I]t is also the policy of my Administration to enforce the antitrust laws to meet the challenges posed by new industries and technologies, including the rise of the dominant Internet platforms, especially as they stem from serial mergers, the acquisition of nascent competitors, the aggregation of data, unfair competition in attention markets, the surveillance of users, and the presence of network effects.

The Executive Order contends that a “whole-of-government” approach is necessary to deal with overconcentration, monopolisation, and unfair competition in the overall economy. In addition to the DOJ and FTC, the Executive Order cites to the enforcement and rulemaking powers of numerous agencies and government departments to promote competition. It calls on the DOJ and FTC to review the agencies’ horizontal and vertical merger guidelines and their Antitrust Guidance for Human Resource Professionals, the DOJ and bank regulators to revitalise bank merger oversight, and the FTC to consider various rulemakings to curtail the use of “unfair” non-compete clauses that limit worker mobility, data collection practices that damage competition or consumer privacy, restrictions that limit third-party repair of items, agreements that limit the entry of generic drugs, unfair types of competition in major internet marketplaces, occupational licensing restrictions and tying in real estate brokerage, among others. It also calls on the Department of Agriculture to consider numerous areas to improve competition for agricultural products, the Federal Communications Commission to consider re-imposing “net neutrality” rules and avoid excessive concentration resulting from future spectrum auctions, and the Department of Health and Human Services to take various actions to increase competition from biosimilar drugs, among other requirements for these and other agencies and departments.

On the heels of this Executive Order, various legislative proposals in Congress related to antitrust issues had been proposed, especially related to technology companies and the digital economy. Proposed legislation have included the American Innovation and Choice Online Act,[4] the Open App Markets Act,[5] the Platform Competition and Opportunities Act,[6] the Ending Platform Monopolies Act,[7] and the Advertising Middlemen Endangering Rigorous Internet Competition Accountability (AMERICA) Act.[8] State-level legislation has also been proposed.[9]

While none of the above proposed acts have become law, Congress did provide a sizable increase in funding for the DOJ and FTC in the Consolidated Appropriations Act, which President Biden signed into law on 29 December 2022. This omnibus law includes the Merger Filing Fee Modernization Act, which increases merger filing fees for all but the smallest firms, a change that is expected to further increase agency funding.[10] The legislation also includes the Foreign Merger Subsidy Disclosures Act, which requires that merging parties provide information regarding subsidies received from any “foreign entity of concern”. The law further includes the State Antitrust Enforcement Venue Act that revises procedures for cases filed by state enforcers under federal law that makes it less likely that a case would be transferred to a different state, a provision that had been sought by state AGs.

Overhaul of FTC practices and positions

Numerous changes have unfolded in personnel, policy, and procedure at the FTC from 2021 through 2023. These changes are substantial and signal an increasingly aggressive stance by the FTC, in line with President Biden’s Executive Order.

…[T]he FTC is firing on all cylinders, using all of our tools to promote free and fair competition in the modern economy…

The FTC is currently at the forefront of the whole-of-government effort to put free and fair competition back at the center of public policy. And, if we succeed, the American economy can emerge more innovative and more prosperous—with our democracy stronger and more resilient.[11]

However, the internal practices of the FTC subsequently resulted in the acrimonious resignation of the only Republican-appointed Commissioner, Christine Wilson, who complained about current Chair Lina Khan’s ‘disregard for the rule of law and due process”.[12] A review of changes in key internal practices that has led to the resignation of a commissioner is instructive for understanding an agency that is attempting to execute under a different vision than in prior decades.[13]

In February 2021, with the support of the DOJ, the FTC announced that it would temporarily suspend granting early termination for merger filings.[14] Mergers meeting certain thresholds must be reported, and the parties to a transaction cannot consummate their merger until the expiry of a waiting period that usually lasts 30 days but can be extended if there is an in-depth investigation. Transactions that raise no concerns historically have been granted early termination, allowing transactions to close before the expiry of the 30-day waiting period. Two of the five FTC Commissioners objected to the suspension of granting early termination at the time of the decision.[15] Though granting early termination was “temporarily” suspended, as of this writing the suspension has lasted over 30 months and appears unlikely to be reversed under the current FTC leadership.[16]

In March 2021, President Biden nominated Lina Khan to serve as a Commissioner of the FTC.[17] Prior to her nomination, Ms Khan was a Columbia University law professor who has been critical of Big Tech starting when she was a law school student.[18] She was approved by the Senate and sworn in on 15 June 2021, and immediately following the Senate’s approval, President Biden designated Ms Khan as Chair of the agency. Previously, Chair Khan served as counsel to the House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law, where she assisted with the House’s investigation into the digital economy.

Extensive modifications to FTC procedure have been implemented since Ms Khan became Chair. On 21 July 2021, the FTC repealed a 1995 policy statement disfavouring the use of prior approval requirements for future, related transactions as part of FTC orders resolving merger cases.[19] Under the 1995 policy, the FTC did not require parties to seek prior approval of certain future acquisitions but instead relied on its standard procedures to scrutinise subsequent transactions. With the repeal, the FTC signalled that future orders resolving merger cases may include requirements that parties notify the FTC about related transactions for up to 10 years, even for small transactions.

In July 2021, the FTC updated its Rules of Practice to change the way it issues rules, and it earlier established a Rulemaking Group in its office of the General Counsel to assist with rulemaking.[20] The FTC has rulemaking authority, but this authority has been little used for many years, especially in the competition area. Recently, however, Commissioners have expressed increasing interest in using rulemaking power and the FTC has issued a proposed rule that would ban the vast majority of noncompete clauses in employment contracts nationwide.[21] This proposed rule is discussed below in the section regarding labour. How the FTC will further use its rulemaking authority going forward is an additional area of uncertainty facing the business community.

In September 2021, the FTC rescinded the Vertical Merger Guidelines,[22] stating that the former guidelines “include unsound economic theories that are unsupported by the law or market realities” and that the withdrawal is in “order to prevent industry or judicial reliance on a flawed approach”.[23] The FTC in conjunction with the DOJ have proposed new merger guidelines that apply to both vertical and horizontal mergers and are written with new policy objectives in mind, as discussed extensively below.

In July 2022, in a 3-2 party-line vote, the FTC eliminated the requirement that staff seek Commission approval for compulsory process regarding potentially collusive conduct, merger and deceptive practice investigations.[24] A statement by the majority explained:

As has been the case with enforcement efforts by our Bureau of Consumer Protection for decades, we believe that these resolutions will not substantially change the multiple layers of checks and balances that are critical to the Commission’s oversight of investigations.

Not individually authorizing compulsory process in each matter simply removes an unnecessary and time-consuming barrier to staff’s pursuit of an investigation.[25]

However, the two commissioners in the minority issued a pointed dissent, singling out the claim that the change in procedure “will not substantially change the multiple layers of checks and balances…” The dissent objects that:

This assertion is baffling, as these broad resolutions eliminate the only layer of Commission oversight concerning the use of compulsory process in the vast majority of the agency’s competition-related investigations. The justifications for these actions rang hollow at the time [they were initiated in July 2021],[26] and still do now. As before, the majority emphasizes the need for expeditious investigations, yet again it fails to produce a shred of evidence that the Commission’s longstanding process causes material delays.[27]

This dissent highlights that making procedural modifications at the FTC after more than a year of leadership from Chair Khan were becoming very contentious.

Moreover, in July 2021, the FTC rescinded a 2015 policy statement on the use of section 5 of the FTC Act.[28] In November 2022, the FTC issued a wholly revamped policy statement regarding the use of section 5 by the FTC to address unfair methods of competition (section 5 Policy Statement).[29] The statement sets forth that a “method of competition” that “goes beyond competition on the merits” may be challenged under section 5. Criteria for evaluating whether a method goes beyond merits include if the conduct is “coercive, exploitative, collusive, abusive, deceptive, predatory, or involve the use of the use of economic power of a similar nature”.[30] The conduct "must tend to negatively affect competitive conditions”.[31]

The section 5 Policy Statement asserts that section 5 “does not require a showing of market power or market definition” and does not focus on a rule of reason inquiry, as it is focused on ‘stopping unfair methods of competition in their incipiency”.[32] The statement includes examples of conduct that may tend to “ripen into violations” such as: invitations to collude, a series of mergers that individually may not violate antitrust law, loyalty rebates, tying, bundling, and exclusive dealing arrangements.[33] In addition, the section 5 policy statement includes as examples of conduct that “violates the spirit of the antitrust laws”, including: facilitation of tacit coordination, parallel exclusionary conduct, undermining a standards-setting process, interfering with examination of patent applications, price discrimination, acquisitions of a nascent competitor, utilising technological incompatibilities to gain competitive advantage, interlocking directors and officers, commercial bribery, corporate espionage, false or deceptive advertising, and refusals to deal.[34]

The FTC’s new section 5 Policy Statement has been sharply criticised, primarily for providing no meaningful guidance for businesses regarding the use of section 5.[35] The dissenting statement of Commissioner Wilson summarises this critique, stating, “instead of providing meaningful guidance to businesses, the Policy Statement announces that the Commission has the authority summarily to condemn essentially any business conduct if finds distasteful”.[36] Further, the dissent critiques the statement stating that it ‘abandons the rule of reason”, “repudiates the consumer welfare standard”, and “rejects a vast body of relevant precedent that requires the agency to demonstrate a likelihood of anticompetitive effects” and “consider business justifications”.[37]

As indicated above, Commissioner Christine Wilson resigned from the FTC in protest in March 2023.[38] In an opinion piece, Commissioner Wilson issued a scathing rebuke of Chair Khan and senior leadership, claiming a “disregard for the law and due process” and that she would “refuse to give [Ms Khan and her enablers”] endeavor any further hint of legitimacy by remaining”.[39]

Since Ms. Khan’s confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power. That task has become increasingly difficult as she has consolidated power with the Office of the Chairman, breaking decades of bipartisan precedent and undermining the commission structure that Congress wrote into law. I have sought to provide transparency and facilitate accountability through speeches and statements, but I face constraints on the information I can disclose – many legitimate, but some manufactured by Ms. Khan and the Democratic majority to avoid embarrassment.[40]

In what appears to have been a factor in her resignation, Ms Wilson had objected on due-process and federal ethical grounds that Chair Khan had refused to recuse herself in the Meta matter despite arguing prior to her FTC nomination that Meta should be blocked making any acquisitions.[41] Subsequently, it was revealed that Chair Khan had declined to recuse herself from the Meta matter despite a recommendation from the FTC’s ethics official that she do so.[42] Chair Khan then redacted Ms Wilson’s dissenting statement, which refenced the ethics advice.[43]

With Ms Wilson’s resignation, the FTC was comprised of just three commissioners, all Democratic appointees. President Biden announced two nominees for the Republican slots at the FTC in July 2023, and their nominations are pending at the time of this writing.[44] Following Ms Wilson’s resignation, the House of Representatives Committee on Oversight and Accountability opened an investigation into the internal practices at the FTC.[45] This led to a contentious back-and-forth between certain members of Congress and Chair Khan.[46]

In line with President Biden’s Executive Order, the FTC has become more active in exploring non-traditional ways of enforcing antitrust law. In June 2022, the FTC opened a sweeping investigation into the business practices of Pharmacy Benefit Managers (PBMs), especially the use of rebates by PBMs, and expressed concern about increased vertical integration in the industry.[47] Such an investigation is more aligned with industry studies pursued in other countries but have been less common in the US. A greater reliance on broader investigations is consistent with the revised section 5 Policy Statement as well as Chair Khan’s testimony before a congressional subcommittee that the FTC was “targeting root causes of competitive harm” by ‘[i]nvesting in horizon-scanning work” to “tackle problems at their incipiency”.[48]

In July 2023, the FTC commissioners voted to withdraw nine PBM advocacy letters that had been issued from 2004 to 2014 because the industry has “changed significantly over the last two decades with increased vertical integration and horizontal concentration; growth of PBM rebates, list prices, and DIR fees; and the expiration of prior FTC Consent Orders”.[49] The FTC also voted to withdraw two healthcare enforcement policy statements stating they ‘are outdated, reflecting market realities that are no longer extant”.[50]

Collectively, these changes are underpinned by neo-Brandeisian views held by agency leadership pointing to an expanded role for antitrust enforcement. As a result, we may see a different set of cases and theories of harm being pursued than antitrust practitioners have observed over the past 40 years. However, the FTC does not operate in a vacuum, and its actions going forward will be influenced by events and actions taken in other branches of the government such as judicial decisions, congressional oversight, and by potential new legislation.

This potential expansion in the scope and type of competition enforcement by the FTC comes following a judicial narrowing of the tools available to it. In recent years, the FTC increasingly had sought monetary relief such as restitution and disgorgement of ill-gotten gains against defendants in both competition and consumer protection cases. It achieved US$723.2 million in monetary relief in 49 cases during fiscal year 2019[51] and US$796.9 million from 63 cases during fiscal year 2020.[52] However, on 22 April 2021, the Supreme Court ruled unanimously in AMG Capital Management, LLC that the FTC does not have the authority under section 13(b) of the FTC Act to seek monetary relief such as restitution or disgorgement, and instead is limited to seeking permanent injunction.[53] Though the FTC can still seek monetary penalties under sections 5 and 19 of the FTC Act in certain circumstances,[54] this ruling meaningfully has reduced the FTC’s overall ability to seek monetary penalties.

Moreover, the FTC faces challenges regarding the use of its administrative law proceedings – that the FTC’s operation as both prosecutor and adjudicator violates equal protection rights and due process. One case is brought by Axon Enterprises Inc, which can proceed following a unanimous Supreme Court decision in April 2023 that federal district courts do have jurisdiction regarding a challenge of the constitutionality of FTC proceedings.[55] Illumina’s case against the FTC before the 5th Circuit is similar and related to the FTC’s decision to unwind Illumina’s acquisition of Grail.[56] The outcome of one or both of these cases could undermine the fundamental structure and use of administrative law judges as has been historically practiced at the FTC.

Focus on labour markets

The DOJ and FTC are more highly focused on competition issues in labour markets now than at any time in their histories. In October 2016, the DOJ and FTC released a policy statement and guidance on antitrust issues in labour markets.[57] This statement emphasises that wage-fixing and agreements not to compete for employees are illegal in most instances.[58] Though these matters had been dealt with as civil antitrust violations previously, the DOJ stated that it intended to prosecute criminally individuals and companies that engage in naked wage-fixing or enter into no-poaching agreements. The DOJ has followed up on this declared intention and has pursued several criminal cases involving labour markets in recent years. The first criminal labour-related cases were filed in late 2020 and early 2021.

The DOJ’s first two criminal labour cases that went to trial resulted in acquittals from juries on back-to-back days in April 2022. In the alleged wage-fixing matter US v Jindal, the DOJ charged a former owner of a therapist staffing company and his former clinical director with participating in a conspiracy to lower rates paid to physical therapists and physical therapist assistants providing in-home care in the Dallas-Fort Worth metropolitan area and elsewhere in northern Texas.[59] The jury acquitted both defendants on the wage fixing charges on 14 April 2022,[60] though the owner was convicted of obstructing an FTC investigation.[61] In the second case, the DOJ charged DaVita and its former CEO with agreeing with Surgical Care Affiliates and another company not to solicit each other’s senior-level employees.[62], [63] The US v DaVita trial resulted in a full acquittal on 15 April 2022.

DOJ’s losses in criminal no-poach cases continued to mount in 2023. In March 2023, a jury acquitted operators of four home health agencies in Maine accused of fixing caretakers’ wages. This case turned on the facts, which included an agreement that was drawn up to limit wages to US$15 or US$16 per hour, but never signed. Moreover, actual wages paid by the companies were in the range of US$18 or US$19 per hour. The defendants argued that there had never been an actual agreement to supress wages, and the jury agreed.[64]

In another loss for the DOJ, in US v Patel, a federal judge ended the DOJ’s case against engineering staffing companies in mid-trial and, in an unusual step, granted the defendants’ motion of acquittal.[65] In ending the trial, the judge assessed whether the per se standard was appropriate and found the government’s case deficient both because the agreement “cannot be said to allocate the market…to any meaningful extent”, and even if there had been an agreement, “no reasonable juror could conclude that there was a cessation of meaningful competition in the allocated market”.[66] The Patel decision cited the DaVita case in certain key respects with regard to the requirements for finding a per se violation.

The DOJ’s criminal no-poach cases have survived motions to dismiss, demonstrating that labour markets are subject to antitrust laws, that individuals and companies can be charged criminally for collusive conduct in these markets, and that the behaviour can be subject to a per se standard. The decision in DaVita, however, indicates that no-poach agreements might not be treated as strict per se violations, but instead require showing that the purpose of any such agreement was to allocate a market.[67], [68] Moreover, as demonstrated in Patel, the evidence would need to show both an agreement to allocate a market and must allow at least one reasonable juror to conclude that there was cessation of competition. While we expect the DOJ to continue to bring similar cases, at the time of this writing, the DOJ is still seeking its first criminal conviction in a labour market matter at trial. However, the DOJ did secure a guilty plea related to the allocation of oncology treatments in southwest Florida in August 2023.[69]

In addition to criminal prosecutions and civil litigation in this area, merger investigations at both the FTC and DOJ now routinely consider whether mergers under investigation likely would have competitive effects in labour markets. The July 2023 proposed merger guidelines (Draft Merger Guidelines) reflect this emphasis on labour markets as it explicitly includes a section on labour issues entitled “When a Merger Involves Competing Buyers, the Agencies Examine Whether It May Substantially Lessen Competition for Workers or Other Sellers”.[70] The Draft Merger Guidelines assert that due to high switching costs and the matching process involved, “labour markets are often relatively narrow”.[71] Further, the agencies stress that the “loss of competition is not offset by purported benefits in a separate downstream market”.[72] The emphasis on potential effects on mergers on labour markets is further reflected in the agencies’ proposed amendments for merger filing requirements that would require labour market data from merging parties including information on Standard Occupational Classifications, geographic information for each classification, and worker safety data.[73]

In addition, in September 2022, the FTC released its Policy Statement on Enforcement Related to Gig Work, which describes that for “businesses that run online platforms” or “gig companies”, concentration can occur due to network effects, which is a specific concern for the FTC:

Gig companies in concentrated markets may be more likely to have and exert market power over gig workers or engage in anticompetitive unilateral or coordinated conduct. Such conduct may eliminate or further weaken competition among existing gig companies for workers’ services or prevent new gig companies from getting off the ground or being able to enter the market. The resulting loss in competition may enable gig companies to suppress wages below competitive rates, reduce job quality, or impose onerous terms on gig workers. In the absence of robust competition among gig companies, unfair and deceptive practices by one platform can proliferate across the labor market, creating a race to the bottom that participants in the gig economy, and especially gig workers, have little ability to avoid.[74]

The FTC also reached a Memorandum of Understanding with the National Labor Relations Board (NLRB) to improve interagency collaboration “[t]o better root out practices that harm workers in the ‘gig economy’ and other labor markets…”[75]

Importantly, the FTC on a 3-1 vote has proposed a rule that would eliminate non-compete clauses nationwide.[76] The proposed ban would make it illegal except in limited circumstances for an employer to “enter into or attempt to enter into a noncompete with a worker; maintain a non-compete with a worker; or represent to a worker, under certain conditions, that the worker is subject to a noncompete”.[77] The FTC has indicated that non-compete clauses impact about one in five US workers, significantly reduce workers’ wages in the amount of about US$300 billion per year, stifle new ideas, hinder economic liberty, and are unnecessarily harmful.[78]

The proposed rule is controversial, however, and generated over 21,000 public comments.[79] Christine Wilson’s dissenting statement calls the rule a “radical departure from hundreds of years of legal precedent that employs fact-specific inquiry into whether a non-compete clause is unreasonable”.[80] Concern has been expressed that a nationwide ban might have unintended consequences including implications for the development and protection of trade secrets and firms’ investment in worker training. Moreover, certain states have laws that already prohibit the enforcement of non-compete clauses, including California, Oklahoma, North Dakota and the District of Columbia, while many states have occupations that are exempted from non-competes by state statute. The proposed FTC one-size-fits-all rule is expected to be challenged legally as an inappropriate extension of the FTC’s rule-making authority.

Agencies’ more aggressive stance in litigation

With the more aggressive enforcement positions of the current agencies’ leadership, the DOJ and FTC have shown an increased willingness to embrace certain theories of harm not typically pursued in earlier cases. Some agency challenges end up in court, where decisions are guided by law and precedent. A DOJ or FTC challenge that uses a novel theory must still pass muster under existing jurisprudence. In the absence of changes in legislation, litigations that depart from law and precedent may result in agency losses in court.

For example, the agencies have shown a greater willingness to challenge vertical mergers, a trend that began before the current leadership at the agencies. However, the agencies have not successfully blocked a merger in federal court based on a vertical theory of harm in recent decades. For example, in 2017 the DOJ pursued the first challenge in decades to a vertical merger in seeking to block the merger between AT&T and Time Warner[81] – though a district court ultimately declined to enjoin the merger.[82]

In March 2021, the FTC filed an administrative complaint to stop a vertical acquisition involving Illumina’s proposed purchase of Grail. Illumina is a DNA sequencing provider, and Grail is a developer of multi-cancer early detection (MCED) tests. According to the FTC, Illumina’s next-generation sequencing (NGS) platforms “are an essential input for the development and commercialization of MCED tests”.[83] The FTC further claimed that ‘[a]s the only supplier of a critical input, Illumina already possesses the ability to foreclose or disadvantage Grail’s MCED rivals”, and if Illumina acquired Grail, it would “gain the incentive to foreclose or disadvantage firms that pose a significant competitive threat to Grail”.[84] In September 2022, an ALJ ruled against the FTC, stating:

Illumina’s status as the only viable supplier of a necessary input for MCED test development existed before the Acquisition, and therefore, Illumina’s asserted abilities to raise prices, withhold supply, or decrease the quality of products or services, also existed before the Acquisition. The evidence fails to prove these abilities are a function of the Acquisition, or have changed as a result of the Acquisition.[85]

Shortly after the ALJ’s decision, Illumina and Grail closed the acquisition. However, the Commissioners voted to reverse the ALJ’s decision and ordered Illumina to divest Grail because it “may substantially lessen competition in the relevant United States market for research, development, and commercialization of MCED tests”.[86] Illumina and Grail appealed the FTC’s decision and the FTC’s order to divest is stayed, pending judicial review.[87]

On 19 September 2022, the DOJ along with the states of New York and Minnesota lost their challenge to the proposed acquisition of Change Healthcare, a “technology company that provides data solutions aimed at improving clinical decision-making and simplifying payment processes” by UnitedHealth, a “vertically integrated healthcare enterprise”.[88] The government proposed three theories of harm – one horizontal theory related to first-pass claims editing and two vertical theories involving raising-rivals’ costs and market foreclosure. The horizontal theory was pursued despite the merging parties having already proposed a divestiture of Change Healthcare’s overlapping solutions. The Court found that the competition in the post-divestiture market ‘will match, and perhaps even exceed, its current levels”.[89] In rejecting the vertical theories, the Court emphasised that the governments’ theories suffered from “serious flaws” and failed to prove their claims that the merged entity would misuse data or that rival payers would innovate less.[90] In September 2022, The DOJ appealed to the US Court of Appeals for the District of Columbia.[91] However, in March 2023, the DOJ voluntarily dismissed the case.[92]

In December 2022, the FTC challenged the proposed merger between Microsoft and Activision Blizzard alleging the deal would enable Microsoft to suppress competitors to its Xbox gaming consoles and its subscription and cloud-gaming business.[93] In July 2023, the US District Court for the Northern District of California denied the FTC’s motion for a preliminary injunction, thus allowing the merger to proceed. The court found “the record evidence points to more consumer access to Call of Duty and other Activision content”, citing Microsoft’s commitment to keep the Call of Duty series on Sony and Nintendo consoles.[94] In August 2023, the FTC asked the Ninth Circuit Court of Appeals to reverse the lower court’s ruling. The FTC’s brief stated that “[t]he district court’s rushed denial of preliminary relief was riddled with errors”.[95] While the merger has gained approval in the EU, Microsoft may still face a roadblock from UK regulators in closing this deal.[96] As at the time of writing, this case has become another example of an unsuccessful challenge of a vertical merger.

The agencies also have been paying closer attention and showing a willingness to challenge so-called “killer acquisitions”, in which an incumbent firm purchases a small but growing competitor that is perceived to be a future threat, otherwise known as a nascent competitor. The term “killer acquisition” appears to have originated from a paper studying mergers and subsequent product development (or lack thereof) in the pharmaceutical industry.[97] Two transactions abandoned early in 2021 were challenged by the agencies based on nascent competitor theories.[98], [99] Also, the FTC’s challenge of Meta’s past acquisitions of WhatsApp and Instagram fits this general framework, though applied to consummated mergers. Nascent competitor theories are expected to continue to be a point of emphasis at the agencies and have been incorporated into the Draft Merger Guidelines made publicly available in July 2023 (discussed further below).

The FTC has also challenged a case in which the theory of potential competition figures prominently. In July 2022, the FTC filed suit against Meta seeking to block its proposed acquisition of Within, a software company that develops apps for virtual reality (VR) devices. In its complaint, the FTC identified two relevant product markets – the “VR Dedicated Fitness App market” and the “VR Fitness App market”.[100] The FTC claimed that the proposed acquisition would result in anticompetitive effects in both markets. According to the FTC, in the alleged VR Dedicated Fitness App market:

The Acquisition would cause anticompetitive effects by eliminating potential competition from Meta in the relevant market for VR dedicated fitness apps. These include eliminating any probability that Meta would enter the market through alternative means absent the Acquisition, as well as eliminating the likely and actual beneficial influence on existing competition that results from Meta’s current position, poised on the edge of the market. … It is reasonably probable that Meta would have entered the VR Dedicated Fitness App market through alternative means absent this acquisition.[101]

In the alleged VR Fitness App market, which is broader, the FTC claims the merger likely would eliminate “both present and future competition” and that effects would take the form of “reduced innovation, quality, and choice” as well as “higher prices” and less competition for the “most talented app developers”.[102] The court accepted the doctrinal validity of potential competition but ruled the FTC failed to establish that Meta would likely have entered either market without the acquisition of Within. As such, the court denied the FTC’s motion for a preliminary injunction.[103]

As another point of emphasis, the FTC has focused recently on what have been referred to as “roll-up strategies of private equity firms, particularly when they buy up small firms in already concentrated markets”.[104] For example, in June 2022, the FTC announced it had reached a consent agreement regarding private equity group JAB’s proposed acquisition of SAGE Veterinary Partners, which operated a network of veterinary clinics and veterinary specialty hospitals.[105] JAB had previously acquired two other veterinary specialty hospital networks. Chair Khan stated:

[S]erial acquisitions or “buy-and-buy” tactics can be used by private equity firms and other corporations to roll up sectors, enabling them to accrue market power and reduce incentives to compete, potentially leading to increased prices and degraded quality.[106]

In addition to requiring divestitures in selected geographies and requiring JAB to seek prior FTC approval before purchasing veterinary clinics in particular geographies for the next 10 years, the FTC required JAB to seek prior approval before attempting “to acquire a specialty or emergency veterinary clinic within 25 miles of a JAB clinic anywhere in the United States that JAB owns now or in the future”.[107] Chair Khan touted this as a “first of its kind” Commission order”. However, even as a “first of its kind” order, it nevertheless is focused on identifying potential horizontal overlaps that may arise from future roll-up tactics and not on the effects of private equity ownership.[108]

Even so, Chair Khan has expressed concern about the competitive implications of the private equity business model, stating:

Antitrust enforcers must be attentive to how private equity firms’ business models may in some instances distort incentives in ways that strip productive capacity, degrade the quality of goods and services, and hinder competition….[F]irms that seek to strip and flip assets over a relatively short period of time are focused on increasing margins over the short-term, which can incentivize unfair or deceptive practices and the hollowing out of productive capacity.[109]

The statement further points to particular concerns with private equity ownership in the healthcare industry citing as an example that “private equity ownership of elder care facilities is correlated with increased deaths at those nursing homes, potentially owing to cost-cutting measures like staffing reductions”.[110] However, singling out private equity transactions has drawn substantial criticism,[111] including from former FTC commissioners in the minority.[112]

Agency losses in court have occurred on more traditional grounds as well, such as market definition. On 23 September 2022, after a four-day trial that took place in April 2022, a district court judge handed the DOJ a loss in its challenge of a merger between Sugar Corporation and Imperial Sugar Company, the first merger challenge brought by the DOJ under the leadership of Assistant AG Jonathan Kanter.[113] The geographic market appears to have played a sizable role in the decision, with the DOJ arguing that the market was limited to the southeastern US and the merging parties arguing that the market would be nationwide due to regulatory oversight by the US Department of Agriculture.[114] The DOJ appealed the decision to the Third Circuit Court of Appeals. However, the Third Circuit ruled against the DOJ stating the District Court’s conclusion as to the relevant market “is not clearly erroneous”.[115]

In addition, the DOJ was unsuccessful three times in a row in a case involving alleged price fixing in the broiler chicken industry.[116] The first and second trials ended in mistrials with hung juries in December 2021 and April 2022, respectively. After the second trial, the district court judge summoned DOJ Assistant Attorney General Johnathan Kanter to his courtroom and sharply questioned the wisdom of the DOJ proceeding to trial a third time, saying that the DOJ may be placing “hope over experience”.[117] The DOJ proceeded to trial a third time against just five individuals (instead of the 10 in its first two trials) but lost outright in the third trial.[118] In October 2022, the DOJ dropped the last case against two Pilgrim’s Pride employees after the district judge excluded certain evidence the DOJ was planning to present at trial.[119]

The DOJ, however, has notched a couple of wins in court recently. In November 2021, the DOJ sued to prevent Penguin Random House from acquiring Simon & Schuster. The DOJ alleged that the merger would have increased publishing industry market concentration, and “allow publishing companies to pay certain authors less money for the rights to publish their books”.[120] The case went to trial in the US District Court of the District of Columbia in August 2022.[121] The District Court agreed with the DOJ and enjoined the merger in October 2022.[122]

Also, the DOJ, along with six states and the District of Columbia, were successful in breaking up an agreement between American Airlines and JetBlue in which the parties “consolidated their operations in Boston and New York City”.[123] The judge’s decision states:

The question before the Court is whether the NEA [Northeast Alliance] suppresses or promotes competition. The record supports only one answer. The NEA, operating as it was designed and intended by American and JetBlue, substantially diminishes competition in the domestic market for air travel…These two powerful carriers act as one entity in the northeast, allocating markets between them and replacing full-throated competition with broad cooperation. The plaintiffs have convincingly established that this arrangement immediately and substantially upsets the competitive balance in a highly concentrated industry, not only on a single overlap route or handful of O&Ds [routes], but throughout the northeast and beyond.[124]

Even with the more recent litigation successes such as above, the DOJ, FTC and state Attorneys General have lost numerous antitrust litigations under current leadership – even some cases built around standard, commonly used antitrust theories. During the current administration, the agencies have been successful in just 30 per cent of challenged transactions at trial (three out of 10).[125] By way of comparison, in the period from 2001 to 2020, government agencies were successful in about 65 percent of challenged transactions at trial (17 out of 28).[126] The impact of litigation outcomes can extend beyond some “score” for how successful the agencies have been, however, as court decisions have implications for how future cases of the same nature might be addressed in judicial proceedings.

In light of this, one might think that the agencies’ recent track record might temper the government’s more recent aggressive posture. However, Chair Khan has described that, “one challenge that we’re confronting here in the US, especially as we mount litigation in the context of digital markets, is pushing the law to evolve”.[127] Following a series of court losses by the DOJ, Assistant AG Jonathan Kanter reportedly encouraged staff to listen to I Won’t Back Down by Tom Petty and to “dance like nobody’s watching”.[128] So, in the short run at least, the government is unlikely to be fazed by litigation setbacks and is likely to continue to “push the law to evolve”.

Big Tech litigations and investigations

As described above, broad concerns have been expressed regarding increasing concentration, margins, and lack of entry across a range of technology-related industries, and whether antitrust enforcement has been sufficiently assertive in these industries. Such criticism has focused on Big Tech. Both FTC Chair Khan and DOJ Assistant Attorney General Jonathan Kanter are considered Big Tech critics. The federal competition agencies have pressed on multiple fronts against Big Tech. In addition, states have demonstrated a willingness to strike out on their own in recent years, especially in cases involving Big Tech, where the spotlight is brightest.

The agencies have divided up responsibilities for the four firms receiving the most scrutiny, with the DOJ investigating Google and Apple, and the FTC investigating Meta and Amazon. In February 2023, the FTC announced it was opening a new Office of Technology, with the purpose of strengthening “the FTC’s ability to keep pace with technological challenges in the digital marketplace by supporting the agency’s law enforcement and policy work”.[129] State attorneys general are conducting their own investigations into the competitive implications of Big Tech business practices. These investigations have led to a flurry of cases.

Following a DOJ investigation of Google related to both general search and search advertising that lasted more than a year,[130] the DOJ (and 11 states) filed suit against Google in October 2020 alleging that agreements that specify Google as the default search engine on mobile devices and computers collectively are exclusionary, and thus anticompetitive.[131] The case is scheduled to go to trial in September 2023. Three separate cases have since been brought by groups of states against Google. The first state-led suit (Texas et al. v Google) was filed by 14 states and Puerto Rico on 16 December 2020, alleging anticompetitive conduct regarding display advertising on third-party websites.[132] The following day, 35 states, Puerto Rico, Guam and the District of Columbia (DC) filed a case (Colorado et al. v Google) alleging monopoly maintenance regarding search and search advertising.[133] Finally, on 7 July 2021, 36 states and DC filed a case (Utah et al. v Google) focusing on Google Play Store and Google Play Billing, alleging harm to competition in the Android app distribution ecosystem and in-app purchases.[134]

In January 2023, the DOJ and several state attorneys general filed a second lawsuit against Google alleging that Google monopolised digital advertising technology products, also known as “ad tech”. The complaint alleges:

Google has engaged in a course of anticompetitive and exclusionary conduct that consisted of neutralizing or eliminating ad tech competitors through acquisitions; wielding its dominance across digital advertising markets to force more publishers and advertisers to use its products; and thwarting the ability to use competing products.[135]

The case, filed in the Eastern District of Virginia, is scheduled to go to trial in early 2024.[136]

The FTC brought a monopoly maintenance case in 2020 against Meta seeking the divestitures of assets and businesses, including Instagram and WhatsApp.[137] This case resulted from an investigation involving the FTC and 46 states, DC and Guam.[138] The FTC’s lawsuit against Meta alleges that its prior acquisitions, including Instagram and WhatsApp, harmed competition by removing nascent competitors from the market that otherwise could have challenged Meta’s position. The FTC also alleges more broadly that Meta “enforc[ed] a series of anticompetitive conditional dealing policies that pulled the rug out from under firms perceived as competitive threats”.[139]

The attorneys general of California and, separately, Washington, DC have filed suits against Amazon for its pricing policies, which allegedly prevent merchants from selling products at lower prices at other online retail locations, including their own websites. The Washington, DC suit was dismissed in March 2022 as not satisfying the plausibility standard and a motion for reconsideration leave to file an amended complaint was denied on 1 August 2022.[140] The dismissal and subsequent denials by the DC superior court have been appealed with the outcome of the appeal still pending.[141] The California lawsuit regarding Amazon’s pricing practices was filed in September 2022.[142] Initial attempts by Amazon to have the case dismissed were unsuccessful and Amazon filed a cross-complaint in May 2023.[143], [144]

In August 2022, it was reported that the DOJ was in the early stages of drafting an antitrust complaint against Apple.[145] According to Wall Street Journal reports:

The Justice Department’s investigation deals in part with Apple’s policies governing mobile third-party software on its devices, which has been the focus of much of the criticism targeting Apple’s competitive practices. The department is also looking at whether Apple’s mobile operating system, iOS, operates in an anticompetitive way by favoring its own products over those of outside developers ….

Apple’s policies governing its App Store have been a target for critics and government regulators around the globe, who have looked at whether its power over pricing and distribution of outside software on its mobile devices harms competition. The Justice Department’s investigation is broader than the App Store, though, and is looking at whether Apple has used its operating system to favor its own products, including hardware, said people familiar with the investigation. By locking down access to iOS, Apple makes the iPhone stickier and discourages users from switching to Android phones.[146]

The DOJ reportedly intensified its efforts to develop a complaint against Apple in early 2023;[147] however, the department has yet to file a complaint related to its investigation as of this writing.

In February 2023, the FTC reportedly was preparing to file an antitrust lawsuit against Amazon.[148] The FTC has been investigating various Amazon business practices since 2019.[149] According to one industry observer:

Third-party merchants, who now account for more than half of the company’s online sales, pay a commission on each sale and can also pay Amazon for services that range from warehousing and shipping to advertising.

These fees are optional, but most merchants consider them necessary costs of doing business. Amazon’s average cut of each sale on its marketplace has increased in recent years, surpassing 50% in 2022, according to a study by Marketplace Pulse, up from 35% in 2016.

The FTC has amassed evidence that the company disadvantages sellers that don’t use these services, and the agency is investigating an algorithm that selects merchants for the web store’s coveted “Buy Box,” where consumers can add products to their cart with one click.[150]

Amazon was scheduled to meet individually with each of the FTC Commissioners in August 2023, indicating that the Commission was close to voting on whether to file suit at that time.[151]

Even as the DOJ, FTC and state attorneys general pursue ongoing (or future) cases against Big Tech firms, among others, the enforcers have experienced some setbacks in court losses in court. For example, in 2018, the Supreme Court ruled against certain states in American Express, a case in which the Court found that anti-steering rules utilised by American Express to prevent merchants from directing consumers to alternative credit cards do not violate antitrust law. That decision has implications for the analysis of cases involving multi-sided platforms, especially with regard to market definition potentially complicating the analysis of platform industries.[152]

Also, the September 2021 district court decision following a bench trial in Epic Games, Inc v Apple Inc might provide something of a preview into the challenges that the agencies face in Big Tech litigation. This case challenged the legality of the 30 percent commission Apple charges developers for app sales (including sales that occur within apps, in “in-game” sales), specifically regarding Epic’s blockbuster video game Fortnite. The Court found that, while Apple is not a “monopolist in the submarket for mobile gaming transactions,” its “conduct in enforcing anti-steering restrictions is anticompetitive”.[153]

So, Apple “won” the case, at least mostly. Both Epic and Apple appealed the ruling. The Ninth Circuit Court of appeals upheld the lower court’s ruling “that Apple’s App Store policies don’t violate federal antitrust law but do violate California’s unfair competition law”.[154] Apple is asking the US Supreme Court to review the “one part of the case that didn’t go its way”.[155] Epic also pursued review by the Supreme Court but was unsuccessful.[156] The ruling regarding anti-steering restrictions suggests that future decisions in Big Tech cases, especially as the agencies seek to expand the application of antitrust law, might involve outcomes with losses and partial wins for the agencies rather than outright victories.

New Merger Guidelines and HSR requirements

The agencies are challenging the traditional framework consistent with the leaders’ Neo-Brandeisian worldview. In January 2022, the agencies announced they planned to revise the merger guidelines to “accurately reflect modern market realities and equip us to forcefully enforce the law against unlawful deals”.[157] Subsequent to the announcement, the agencies solicited public feedback on the current merger guidelines.

Nearly a year and a half later, on 19 July 2023, the agencies publicly released a draft update of the Merger Guidelines.[158] The Draft Merger Guidelines reflect the direction in which the agencies’ leadership would like antitrust enforcement to move, consistent with its ongoing challenges to the traditional antitrust framework. Coincident with its public release, Commissioners Slaughter and Bedoya issued statements praising the Draft Merger Guidelines. Commissioner Slaughter highlighted the combination of previously distinct horizontal and vertical merger guidelines into a single set of guidelines and the “reinvigorating” enforcement under section 7 of the Clayton Act “by expressly incorporating its “tend to create a monopoly” language in the analytical frameworks”.[159] Commissioner Bedoya praised the Draft Merger Guidelines’ explicit consideration of workers in merger enforcement, which is not present under the current guidelines.[160]

The Draft Merger Guidelines differ from the current guidelines in both form and substance.[161] As to form, the Draft Merger Guidelines begin with an overview of 13 guidelines, while subsequent sections and appendices detail how each of these guidelines would be applied in practice.[162] The Draft Merger Guidelines include citations to “binding legal precedent” pursuant to the stated goal that the Draft Merger Guidelines “reflect the law as written by Congress and interpreted by the highest courts”.[163]

Guidelines 1–8 “identify several frameworks that the Agencies use to assess the risk that a merger’s effect may be substantially to lessen competition or tend to create a monopoly”.[164] Specifically:

  1. Mergers should not significantly increase concentration in highly concentrated markets.
  2. Mergers should not eliminate substantial competition between firms.
  3. Mergers should not increase the risk of coordination.
  4. Mergers should not eliminate a potential entrant in a concentrated market.
  5. Mergers should not substantially lessen competition by creating a firm that controls products or services that is rivals may use to compete.
  6. Vertical mergers should not create market structures that foreclose competition.
  7. Mergers should not entrench or extend a dominant position.
  8. Mergers should not further a trend toward concentration.[165]

Guidelines 1–8 place renewed emphasis on market structure, market shares and Herfindahl-Hirschman Indexes (HHIs) when identifying mergers that may substantially lessen competition or tend to create monopoly. In certain conditions, such as markets that are highly concentrated or have previously engaged in coordination, the agencies would presume that a merger may substantially lessen competition.[166] According to the Draft Merger Guidelines, “In the Agencies’ experience, this type of structural presumption provides a highly administrable and useful tool for identifying mergers that may substantially lessen competition.”[167]

For example, the agencies would presume that a merger may substantially lessen competition if the post-merger HHI in a market is greater than 1,800 and the change in HHI is greater than 100. Even markets with an HHI below 1,800 may be challenged by the agencies if the post-merger change in the HHI would be greater than 100 and the merged firm would achieve a greater than 30 per cent market share, which is the threshold for what the agencies consider a dominant position.[168] This is in contrast with prior guidelines and practices in which a presumption was not made unless the post-merger HHI was above 2500 and the change in the HHI was greater than 200.[169]

The Draft Merger Guidelines seek to change the focus on market definition to make it a more flexible exercise. Historically, the agencies have defined product and geographic markets by evaluating whether a hypothetical monopolist will be able to profitably undertake a small but significant and non-transitory increase in price (SSNIP). However, in describing market definition, the Draft Merger Guidelines describe four types of analyses – the first two relate to direct evidence, the third relates to “practical indicia” and the fourth describes the familiar hypothetical monopolist test and SSNIP.[170]

The Draft Merger Guidelines extend the SSNIP test to include non-price dimensions of competition such as quality, service, capacity investment, choice of product variety or features, or innovative effort that may result in worsening of terms, in what is called an SSNIPT test. Implementation of the SSNIPT test is not well defined within the Draft Merger Guidelines. However, the results of a SSNIPT test likely would lead to narrower relevant product and geographic markets since worsening terms can profitably occur “despite the potential for customers to substitute away from the product or take advantage of arbitrage”.[171] Thus, the adoption and application of the SSNIPT test is conducive to more presumptions that transactions may substantively lessen competition and therefore more challenges of proposed mergers, all else equal.

Guidelines 9–12 explain the application of the principles set forth in the first eight guidelines for certain circumstances in which the agencies have made more aggressive enforcement a priority. These four guidelines explain that:

  1. When a merger is part of a series of multiple acquisitions, the agencies may examine the whole series.
  2. When a merger involves a multi-sided platform, the agencies examine competition between platforms, on a platform or to displace a platform.
  3. When a merger involves competing buyers, the agencies examine whether it may substantially lessen competition for workers or other sellers.
  4. When an acquisition involves partial ownership or minority interests, the agencies examine its impact on competition.

Acquisitions of nascent competitors are addressed in Guideline 9, which specifies that a firm that engages in a pattern or strategy of small acquisitions may violate section 7 of the Clayton Act even if each individual acquisition would not result in lessened competition or create monopoly. To establish this, the agencies will evaluate the pattern of acquisitions and the overall strategic approach of the acquiring firm. The agencies may also evaluate sequential acquisitions to assess their competitive effects as a whole. The Draft Merger Guidelines also indicate that antitrust law has a preference for internal growth over acquisition (Guideline 4), which may also affect how acquisitions of nascent competitors are viewed by the agencies under the Draft Merger Guidelines.

Competition involving platforms is addressed in Guideline 10. Horizontal mergers between platforms may give rise to traditional competition concerns when two competitors merge and operate as one firm. However, the Draft Merger Guidelines note that the agencies seek to protect competition to displace a currently dominant platform or any of its services: “The Agencies seek to prevent even relatively small accretions of power from inhibiting the prospects for displacing the platform or for decreasing dependency on the platform.”[172]

The Draft Merger Guidelines offer hypothetical examples of what appear to be vertical mergers involving a platform that may also raise competition concerns (eg: (i) when a platform operator acquires a platform participant; (ii) when an intermediary that facilitates competition between platforms is acquired; and (iii) when a provider of services to a platform is acquired). Interestingly, the Draft Merger Guidelines seek to marginalise the findings of the Supreme Court in American Express by characterising platforms related to transactions that may require consideration of both sides of a two-sided market as a “limited scenario”.[173]

Labour markets are the focus of Guideline 11. A merger may result in reduced labour market competition that “may lower wages or slow wage growth, worsen benefits or working conditions, or result in other degradations of workplace quality” and any of these effects “may demonstrate that substantial competition exists between the merging firms”.[174] As described above, the Draft Merger Guidelines describe that labour market frictions are conducive to a narrow relevant antitrust market for some positions that “may in some cases put firms in dominant positions”.[175] While the current guidelines also indicate the agencies view monopsony power as potentially problematic to competition as monopoly power, the Draft Merger Guidelines’ emphasis on labour market monopsony power is more detailed.

Cross-ownership by firms is addressed in Guideline 12. Cross-ownership of firms by the same party may give raise competitive concerns under section 7 of the Clayton Act even in instances in which the interest is not controlling.[176] The Draft Merger Guidelines describe this concern in Guideline 12 in stating that “acquisition of a minority position may permit influence of the target firm, implicate strategic decisions of the acquirer with respect to its investment in other firms, or change incentives so as to otherwise dampen competition”.[177] The inclusion of Guideline 12 is also consistent with past attempts by the FTC and DOJ to limit overlapping directorates in certain circumstances, enforced under section 8 of the Clayton Act.[178] The past efforts and the Draft Merger Guidelines indicate this will be an area of focus for the agencies, going forward.

Finally, Guideline 13 (Mergers should not otherwise substantially lessen competition or tend to create monopoly) provides the agencies with additional flexibility to challenge mergers not otherwise subject to scrutiny under the preceding 12 guidelines. Specific scenarios are discussed related to avoidance of regulatory constraints, exploiting a unique procurement process or a merger that would dampen incentives to compete.[179]

Importantly, the FTC has proposed substantial changes to the HSR premerger notification form to provide substantially more information to the agencies regarding proposed transactions than required previously.[180] If implemented, the rules would require merging parties to submit more data, documents, and narratives about the proposed merger than were previously required. One estimate is that the proposed rules would result in as many as 222 additional hours per filing.[181] The additional data and documents would require more time and effort by the agencies for review, as well. Such changes not only increase the burden on merging parties – even for those that have no competitive concerns (the vast majority) – but also are expected to increase the duration of investigations and delay approvals even for deals that do not have any competitive concerns.


Notes

[1] Thanks to Brad Noffsker for his research, drafting and commentary, as well as Emily Dabas, Connor Dixon, Felipe Germanos, Emily Gibbons, Thomas Gill and Alexandra Holmes for research assistance. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions, position, or policy of Berkeley Research Group, LLC or its other employees and affiliates.

[2] “Remarks of Chair Lina M. Khan As Prepared for Delivery Economic Club of New York,” 24 July 2023, p. 2, available at https://www.ftc.gov/system/files/ftc_gov/pdf/remarks-khan-economic-club-new-york.pdf.

[3] “Executive Order on Promoting Competition in the American Economy,” The White House, 9 July 2021, available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.

[4] The proposed American Innovation and Choice Online Act would prevent “dominant” online platforms from giving preferences to their own products on their own platforms. See, House Judiciary Committee Chairman Nadler’s Statement for the Markup of H.R. 3816, the American Innovation and Choice Online Act, 24 June 2021, available at https://web.archive.org/web/20221208193252/http://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4620.

[5] The proposed Open App Markets Act would prohibit owners of app stores with more than 50 million US users from requiring the use of in-app payment systems controlled by the app store owner or requiring favourable pricing terms on their app store versus another app store. See, S.2710 – Open App Markets Act, 17 February 2022, available at https://www.congress.gov/bill/117th-congress/senate-bill/2710.

[6] The proposed Platform Competition and Opportunities Act would shift the burden of proof by requiring a “dominant” platform to demonstrate that its acquisition of a smaller rival or potential rival would not harm competition. See, House Judiciary Committee Chairman Nadler’s Statement for the Markup of H.R. 3826, the Platform Competition and Opportunity Act of 2021, 23 June 2021, available at https://web.archive.org/web/20221207151812/https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4619.

[7] The proposed Ending Platform Monopolies Act could force gatekeepers to divest lines of business where they can favour their own services to the disadvantage of rivals. See,House Antitrust Subcommittee Vice Chair Jayapal’s Statement on the Ending Platform Monopolies Act (H.R. 3825), 24 June 2021, available at https://jayapal.house.gov/2021/06/24/big-tech-legislation-passes-judiciary-committee/.

[8] The proposed AMERICA Act seeks to address concerns about competition in digital advertising. See, “The America Act: Lee Introduces Bill to Protect Digital Advertising Competition,” 30 March 2023, available at https://www.lee.senate.gov/2023/3/the-america-act.

[9] See, for example, Bribach, Winston, “State Case You Need to Know: Analyzing New York’s 21st Century Antitrust Act,” ABA Antitrust Newsletter, 22 June 2022 available at https://www.americanbar.org/groups/antitrust_law/resources/newsletters/state-case-new-yorks-21st-century-antitrust-act/.

[10] H.R.2617 - 117th Congress (2021-2022): Consolidated Appropriations Act, 2023, available at https://www.congress.gov/bill/117th-congress/house-bill/2617; and Finch, Andrew, Aidan Synnott and Marta Kelly, “What’s On Deck for Antitrust Enforcement in 2023,” Law360, 11 January 2023.

[11] FTC, “Remarks of Chair Lina M. Khan As Prepared for Delivery Economic Club of New York,” 24 July 2023, p. 7, available at https://www.ftc.gov/system/files/ftc_gov/pdf/remarks-khan-economic-club-new-york.pdf.

[12] Wilson, Christine, “Why I’m Resigning as an FTC Commissioner – Lina Khan’s Disregard for the Rule of Law and Due Process Make It Impossible for Me to Continue Serving,” Wall Street Journal, 14 February 2023, available at https://www.wsj.com/articles/why-im-resigning-from-the-ftc-commissioner-ftc-lina-khan-regulation-rule-violation-antitrust-339f115d.

[13] See generally, Wu, Tim, “The Utah Statement: Reviving Antimonopoly Traditions for the Era of Big Tech,” 18 Nov, 2019, available at https://onezero.medium.com/the-utah-statement-reviving-antimonopoly-traditions-for-the-era-of-big-tech-e6be198012d7 (account required).

[14] “FTC, DOJ Temporarily Suspend Discretionary Practice of Early Termination,” Federal Trade Commission, 4 February 2021, available at https://www.ftc.gov/news-events/press-releases/2021/02/ftc-doj-temporarily-suspend-discretionary-practice-early.

[15] See “Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson, Regarding the Commission’s Indefinite Suspension of Early Termination,” Federal Trade Commission, 4 February 2021, available at https://www.ftc.gov/system/files/documents/public_statements/1587047/phillipswilsonetstatement.pdf.

[16] Steren, John and Wagner, Patricia “Return of Early Termination of the HSR Waiting Period Not on the FTC’s Agenda, According to Commissioner Phillips,” The National Law Review, XII (262), 10 March 2022, available at https://www.natlawreview.com/article/return-early-termination-hsr-waiting-period-not-ftc-s-agenda-according-to.

[17] “Lina M. Khan Sworn in as Chair of the FTC,” Federal Trade Commission, 15 June 2021, available at https://www.ftc.gov/news-events/news/press-releases/2021/06/lina-m-khan-sworn-chair-ftc.

[18] Khan, Lina M. (2017), “Amazon’s Antitrust Paradox,” The Yale Law Journal, 126 (3): 710-805.

[19] “FTC Rescinds 1995 Policy Statement that Limited the Agency’s Ability to Deter Problematic Mergers,” FTC Press Release, 21 July 2021, available at https://www.ftc.gov/news-events/press-releases/2021/07/ftc-rescinds-1995-policy-statement-limited-agencys-ability-deter.

[20] “FTC Votes to Update Rulemaking Procedures, Sets Stage for Stronger Deterrence of Corporate Misconduct,” FTC Press Release, 1 July 2021, available at https://www.ftc.gov/news-events/press-releases/2021/07/ftc-votes-update-rulemaking-procedures-sets-stage-stronger.

[21] FTC Proposed Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition – Agency Estimates New Rule Could Increase Workers’ Earnings by Nearly $300 Billion Per Year, FTC Press Release, 5 January 2023, available at https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-rule-ban-noncompete-clauses-which-hurt-workers-harm-competition.

[22] “Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary,” FTC Press Release, 15 September 2021, available at https://www.ftc.gov/news-events/press-releases/2021/09/federal-trade-commission-withdraws-vertical-merger-guidelines.

[23] “Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary,” FTC Press Release, 15 September 2021, available at https://www.ftc.gov/news-events/press-releases/2021/09/federal-trade-commission-withdraws-vertical-merger-guidelines.

[24] Federal Trade Commission Authorizes Three New Compulsory Process Resolutions for Investigations, FTC Press Release, 26 August 2022, available at https://www.ftc.gov/news-events/news/press-releases/2022/08/federal-trade-commission-authorizes-three-new-compulsory-process-resolutions-investigations.

[25] Statement of Commissioner Alvaro M. Bedoya, Jointed by Chair Lina M. Khan and Commissioner Rebecca Kelly Slaughter Regarding Omnibus Resolutions Approved by the Federal Trade Commission, 17 August 2022, available at https://www.ftc.gov/system/files/ftc_gov/pdf/Majority%20Omnibus%20Res.%20Statement.pdf.

[26] The FTC has adopted 15 omnibus resolutions authorizing compulsory process in July 2021, September 2021, and July 2022. “The 15 omnibus resolutions authorize compulsory process in investigations of possible illegality stemming from (1) any merger subject to federal premerger notification requirements, including those under the HSR Act, (2) any suspected monopolization, attempt to monopolize, or conspiracy to monopolize, (3) any consummated merger or acquisition by an entity with a current enterprise value over $5 billion, (4) any simultaneous service as an officer or director of, or a contemporaneous financial stake in, two or more competing entities, (5) any suspected abuse of intellectual property; (6) prohibited conduct targeting workers or small-business operators; (7) prohibited conduct by any person or entity subject to an FTC administrative order; or prohibited conduct related to (8) any healthcare market, (9) any market with participants that provide technology platform services, (10) any algorithm or biometrics, (11) any marketing of goods and services on the Internet, manipulation of user interfaces, or use of email, metatags, computer code, or programs, (12) any good or service marketed, in whole or in part, to children under 18 years of age, (13) any good or service marketed, in whole or in part, to members or veterans of the U.S. Armed Forces and States’ National Guards, (14) any diagnosis, treatment, or government benefits for COVID-19, or (15) any repair restriction.” Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson Regarding the Issuance of Two Omnibus Compulsory Process Resolutions, 1 July 2022, footnote 5, available at https://www.ftc.gov/system/files/ftc_gov/pdf/Dissenting%20omnibus%20resolution%20statement.pdf.

[26] Federal Trade Commission and Justice Department Seek to Strengthen Enforcement Against Illegal Mergers, FTC Press Release, 18 January 2022 (emphasis in original), available at https://www.ftc.gov/news-events/news/press-releases/2022/01/federal-trade-commission-justice-department-seek-strengthen-enforcement-against-illegal-mergers.

[27] Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson Regarding the Issuance of Two Omnibus Compulsory Process Resolutions, 1 July 2022, available at https://www.ftc.gov/system/files/ftc_gov/pdf/Dissenting%20omnibus%20resolution%20statement.pdf.

[28] “FTC Rescinds 2015 Policy that Limited Its Enforcement Ability Under the FTC Act,” FTC Press Release, 1 July 2021, available at https://www.ftc.gov/news-events/press-releases/2021/07/ftc-rescinds-2015-policy-limited-its-enforcement-ability-under.

[29] Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act, Commission File No. P221202, 10 November 2022, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p221202sec5enforcementpolicystatement_002.pdf.

[30] Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act, Commission File No. P221202, 10 November 2022, pg. 9, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p221202sec5enforcementpolicystatement_002.pdf.

[31] Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act, Commission File No. P221202, 10 November 2022, pg. 9, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p221202sec5enforcementpolicystatement_002.pdf.

[32] Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act, Commission File No. P221202, 10 November 2022, pg. 10, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p221202sec5enforcementpolicystatement_002.pdf.

[33] Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act, Commission File No. P221202, 10 November 2022, pp. 12-13, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p221202sec5enforcementpolicystatement_002.pdf.

[34] Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act, Commission File No. P221202, 10 November 2022, pp. 13–16, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p221202sec5enforcementpolicystatement_002.pdf.

[35] See Murus, Timothy J., “Neo-Brandeisian Antitrust – Repeating History’s Mistakes,” American Enterprise Institute, June 2023, pg. 68, available at https://www.aei.org/wp-content/uploads/2023/06/Neo-Brandeisian-Antitrust-Repeating-Historys-Mistakes.pdf?x91208.

[36] Dissenting Statement of Commissioner Christine S. Wilson Regarding the “Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act,” Commission File No. P221202, 10 November 2022, pp. 1–2, available at: https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyWilsonDissentStmt.pdf.

[37] Dissenting Statement of Commissioner Christine S. Wilson Regarding the “Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act,” Commission File No. P221202, 10 November 2022, pp. 1–2, available at: https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyWilsonDissentStmt.pdf.

[38] Letter from Commissioner Christine S. Wilson to Joseph R. Biden, Jr., 2 March 2023, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p180200wilsonresignationletter.pdf.

[39] Wilson, Christine, “Why I’m Resigning as an FTC Commissioner – Lina Khan’s Disregard for the Rule of Law and Due Process Make It Impossible for Me to Continue Serving,” Wall Street Journal, 14 February 2023, available at https://www.wsj.com/articles/why-im-resigning-from-the-ftc-commissioner-ftc-lina-khan-regulation-rule-violation-antitrust-339f115d.

[40] Wilson, Christine, “Why I’m Resigning as an FTC Commissioner – Lina Khan’s Disregard for the Rule of Law and Due Process Make It Impossible for Me to Continue Serving,” Wall Street Journal, 14 February 2023, available at https://www.wsj.com/articles/why-im-resigning-from-the-ftc-commissioner-ftc-lina-khan-regulation-rule-violation-antitrust-339f115d.

[41] Wilson, Christine, “Why I’m Resigning as an FTC Commissioner – Lina Khan’s Disregard for the Rule of Law and Due Process Make It Impossible for Me to Continue Serving,” Wall Street Journal, 14 February 2023, available at https://www.wsj.com/articles/why-im-resigning-from-the-ftc-commissioner-ftc-lina-khan-regulation-rule-violation-antitrust-339f115d. See, Order Denying Petition for Recusal, In the Matter of Meta Platforms, Inc., Mark Zuckerberg, and Within Unlimited, Inc., FTC Docket No. 9411.

[42] Nylen, Leah, “FTC Rejected Ethics Advice for Khan Recusal on Meta Case,” Bloomberg News, 16 June 2023, available at https://news.bloomberglaw.com/antitrust/ftc-rejected-ethics-advice-for-khan-recusal-on-meta-case.

[43] Nylen, Leah, “FTC Rejected Ethics Advice for Khan Recusal on Meta Case,” Bloomberg News, 16 June 2023, available at https://news.bloomberglaw.com/antitrust/ftc-rejected-ethics-advice-for-khan-recusal-on-meta-case.

[44] “Biden Names Two Republican Nominees for FTC Commissioner, White House Says,” Reuters, 3 July 2023, available at https://www.reuters.com/world/us/biden-names-two-nominees-ftc-commissioner-white-house-says-2023-07-03/.

[45] Letter to Chair Khan and Commissioners Slaughter and Bedoya from James Comer, Chairman, Committee on Oversight and Accountability, 1 June 2023, available at https://oversight.house.gov/wp-content/uploads/2023/06/FTC-Letter-Ethics-Due-Process-Rule-of-Law-1.pdf.

Questions have also been raised regarding the manner in which the FTC is using previously agreed-upon consent orders to seek extensive information from companies such as Meta and Twitter. See, Chilson, Neil, “Congress Should Curb FTC Pattern of Consent Order Abuse,” Law360, 11 July 2023.

[46] See, e.g., Letter to Chair Khan from Jim Jordan, Chairman, Committee on the Judiciary, 28 July 2023, available at https://judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/evo-media-document/2023-07-28-jdj-to-ftc-re-tis.pdf.

[47] FTC Launches Inquiry Into Prescription Drug Middlemen Industry, FTC Press Release, 7 June 2022, available at https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-launches-inquiry-prescription-drug-middlemen-industry.

[48] Prepared Statement of the Federal Trade Commission Before the United States Senate Committee on the Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights “Oversight of the Enforcement of the Antitrust Laws” 20 September 2022, p. 2, available at https://www.ftc.gov/system/files/ftc_gov/pdf/P210100SenateAntitrustTestimony09202022.pdf.

[49] FTC, “Federal Trade Commission Statement Concerning Reliance on Prior PBM-Related Advocacy Statements and Reports That No Longer Reflect Current Market Realities,” 18 July 2023, available at https://www.ftc.gov/system/files/ftc_gov/pdf/CLEANPBMStatement7182023%28OPPFinalRevisionsnoon%29.pdf. See also, FTC, “FTC Votes to Issue Statement Withdrawing Prior Pharmacy Benefit Manager Advocacy,” 20 July 2023, available at https://www.ftc.gov/news-events/news/press-releases/2023/07/ftc-votes-issue-statement-withdrawing-prior-pharmacy-benefit-manager-advocacy.

[50] FTC, “FTC Withdraws Healthcare Enforcement Policy Statements,” 14 July 2023, available at https://www.ftc.gov/system/files/ftc_gov/pdf/P859910FTCWithdrawsHealthcareEnforceStmts.pdf.

[51] Federal Trade Commission, Congressional Budget Justification, Fiscal Year 2021, 10 February 2020, p. 5, available at https://www.ftc.gov/system/files/documents/reports/fy-2021-congressional-budget-justification/fy_2021_cbj_final.pdf.

[52] Federal Trade Commission, Congressional Budget Justification, Fiscal Year 2022, 28 May 2021, p. 7, available at https://www.ftc.gov/system/files/documents/reports/fy-2022-congressional-budget-justification/fy22cbj.pdf.

[53] AMG Capital Management, LLC, et al. v Federal Trade Commission, Supreme Court of the United States, No. 19-508, 593 U.S. __, 141 S. Ct. 1341, Slip Opinion, 22 April 2021, available at https://www.supremecourt.gov/opinions/20pdf/19-508_l6gn.pdf.

[54] Specifically, the FTC must hold an administrative hearing and subsequently issue a cease-and-desist order. The section 5 process must be brought within three years of the alleged violation and monetary relief must be sought within one year of the cease-and-desist order. In addition, monetary relief would only apply when a “reasonable man would have known under the circumstances” that the illegal conduct was “dishonest or fraudulent”. AMG Capital Management, LLC, et al. v Federal Trade Commission, Supreme Court of the United States, No. 19-508, 593 U.S. __, 141 S. Ct. 1341, Slip Opinion, 22 April 2021, citing 15 U.S.C. §57b(a)(2).

[55] Axon Enterprise, Inc. v. FTC, 598 U.S. __ (2023).

[56] Perlman, Matthew, “FTC Wants 5th Circ. To Slow Down Illumina’s Grail Appeal,” Law360, 1 June 2023.

[57] FTC and DOJ, “Antitrust Guidance for Human Resource Professionals,” October 2016, available at https://www.justice.gov/atr/file/903511/download.

[58] An exception is a joint venture (JV), where the parties need to agree on certain restrictions to facilitate the formation and operation of the JV.

[59] United States of America v. Neeraj Jindal, U.S. District Court for the Eastern District of Texas, No. 4:20cr00358, Indictment, 9 December 2020, available at https://www.justice.gov/opa/press-release/file/1373911/download.

[60] United States of America v. Neeraj Jindal, U.S. District Court for the Eastern District of Texas, No. 4:20cr00358, Verdict of the Jury, 14 April 2022.

[61] See DOJ, “Former Health Care Staffing Executive Convicted of Obstructing FTC Investigation into Wage-Fixing Allegations,” 14 April 2022, available at https://www.justice.gov/opa/pr/former-health-care-staffing-executive-convicted-obstructing-ftc-investigation-wage-fixing.

[62] United States of America v. DaVita Inc. and Kent Thiry, U.S. District Court for the District Court of Colorado, No. 21cr00229-RBJ, Indictment, 14 July 2021.

[63] Separately, a grand jury indicted Surgical Care Affiliates in January 2021. United States of America v. Surgical Care Affiliates, LLC and SCAI Holdings, LLC, U.S. District Court for the Northern District of Texas, No. 3:21cr011, Superseding Indictment, 8 July 2021 (supersedes Indictment filed on 5 January 2021).

[64] Salvatore, Cara, “Home Health Execs Acquitted In Latest DOJ Antitrust Loss,” Law360, 22 March 2023, available at https://www.law360.com/articles/1586974/home-health-execs-acquitted-in-latest-doj-antitrust-loss; and Koenig, Bryan, “Juries Not Buying DOJ Antitrust Labor Push As Losses Mount,” Law360, 23 March 2023, available at https://www.law360.com/articles/1588981/juries-not-buying-doj-antitrust-labor-push-as-losses-mount.

[65] US v. Mahesh Patel et. al., No. 3:21-cr-220 (VAB), Ruling and Order on Defendants’ Motions for Judgement of Acquittal, 28 April 2023.

[66] US v. Mahesh Patel et. al., No. 3:21-cr-220 (VAB), Ruling and Order on Defendants’ Motions for Judgement of Acquittal, 28 April 2023, p. 18.

[67] In DaVita, the Court found, “[A]t trial, the government will not merely need to show that the defendants entered into the non-solicitation agreement and what the terms of the agreement were. It will have to prove beyond a reasonable doubt that defendants entered into an agreement with the purpose of allocating the market for senior executives (Count 1) and other employees (Counts 2 and 3)” (United States of America v. DaVita Inc. and Kent Thiry, District Court for the District Court of Colorado, No. 21cr00229-RBJ, Order Denying Defendants Motion to Dismiss, 28 January 2022). See also, Koeing, Bryan, “DaVita Acquittal Sets High Bar for DOJ No-Poach Cases,” 2 June 2022, Law360, available at https://www.law360.com/articles/1497544/davita-acquittal-sets-high-bar-for-doj-no-poach-cases.

[68] Given the current focus on labour market issues at the agencies, Aya Healthcare Services, Inc v. AMN Healthcare, Inc. is another recent notable case where the courts’ decisions indicate that contractual restrictions do not invoke per se treatment under antitrust law. The case involved private litigation between two healthcare staffing agencies that place travel nurses on temporary assignments. Aya Healthcare had contracted with AMN Healthcare to provide staffing when AMN Healthcare had insufficient staff to meet customer needs, and its contract included a restriction preventing Aya Healthcare from soliciting AMN Healthcare employees. Aya Healthcare challenged this restriction, and the DOJ participated as an amicus, arguing that the restriction was a naked restraint that was a per se violation. Both the District and Ninth Circuit courts disagreed, finding the restriction an ancillary restraint subject to a rule of reason analysis. See Aya Healthcare Services, Inc v. AMN Healthcare, No. 20-55679, Opinion, 19 August 2021.

[69] “Doctor Pleads Guilty to Role in Antitrust Conspiracy That Limited Cancer Patients’ Options for Life Saving Care in Southwest Florida,” DOJ Press Release, 24 August 2023, available at https://www.justice.gov/opa/pr/doctor-pleads-guilty-role-antitrust-conspiracy-limited-cancer-patients-options-life-saving.

[70] FTC and DOJ, “Merger Guidelines,” 19 July 2023, available at https://www.ftc.gov/legal-library/browse/ftc-doj-merger-guidelines-draft-public-comment, § 11.

[71] Draft Merger Guidelines, p. 26.

[72] Draft Merger Guidelines, p. 26.

[73] FTC, “Premerger Notification; Reporting and Waiting Period Requirements,” 29 June 2023, available at https://www.federalregister.gov/documents/2023/06/29/2023-13511/premerger-notification-reporting-and-waiting-period-requirements, III.D.2.c.

[74] “FTC Policy Statement on Enforcement Related to Gig Work,” 15 September 2022, available at https://www.ftc.gov/system/files/ftc_gov/pdf/Matter%20No.%20P227600%20Gig%20Policy%20Statement.pdf. See also, “Policy Statement on Enforcement Related to Gig Work,” FTC Press Release, 15 September 2022, available at https://www.ftc.gov/legal-library/browse/policy-statement-enforcement-related-gig-work.

[75] FTC and NLRB, “Memorandum of Understanding between the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) Regarding Information Sharing, Cross-Agency Training, and Outreach in Areas of Common Regulatory Interest,” 19 July 2022, available at https://www.ftc.gov/system/files/ftc_gov/pdf/ftcnlrb%20mou%2071922.pdf.

[76] Non-Compete Clause Rule, 88 Fed. Reg. 3482, 19 January 2023, available at https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking.

[77] “FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition – Agency Estimates New Rule Could Increase Workers’ Earnings by Nearly $300 Biller Per Year,” FTC Press Release, 5 January 2023, available at https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-rule-ban-noncompete-clauses-which-hurt-workers-harm-competition?trk=organization_guest_main-feed-card_feed-article-content.

[78] FACT SHEET: FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition, 5 January 2023, available at https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete_nprm_fact_sheet.pdf.

[79] Non-Compete Clause Rule (NPRM), Posted by the Federal Trade Commission 9 January 2023, Posted Comments, available at https://www.regulations.gov/document/FTC-2023-0007-0001/comment.

[80] Dissenting Statement of Commissioner Christine S. Wilson Regarding the Notice of Proposed Rulemaking for the Non-Compete Clause Rule, Federal Trade Commission, Commission File No. P201200-1, 5 January 2023, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p201000noncompetewilsondissent.pdf.

[81] United States of America v. AT&T Inc. et al, District Court for the District of Columbia, No. 1:17-cv-02511, Complaint, 20 November 2017, available at https://www.justice.gov/atr/case-document/file/1012916/download.

[82] United States of America v. AT&T Inc. et al, District Court for the District of Columbia, No. 1:17-cv-02511-RJL, Memorandum Opinion, 12 June 2018.

[83] In the Matter of Illumina, Inc., and GRAIL, Inc., Before the Federal Trade Commission, Complaint, Redacted-Public Version, 13 March 2021, p. 3, available at https://www.ftc.gov/system/files/documents/cases/redacted_administrative_part_3_complaint_redacted.pdf.

[84] In the Matter of Illumina, Inc., and GRAIL, Inc., Before the Federal Trade Commission, Complaint, Redacted-Public Version, 13 March 2021, pp. 5-6, available at https://www.ftc.gov/system/files/documents/cases/redacted_administrative_part_3_complaint_redacted.pdf.

[85] In the Matter of Illumina, Inc., and GRAIL, Inc., Before the Federal Trade Commission, Initial Decision, Public Version, 9 September 2022, p. 172, available at https://www.ftc.gov/system/files/ftc_gov/pdf/D09401InitialDecisionPublic.pdf.

[86] FTC “Opinion of the Commission,” 31 March 2023, p. 2, available at https://www.ftc.gov/system/files/ftc_gov/pdf/d09401commissionfinalopinion.pdf?originationContext=KnowledgeGraph.

[87] FTC, “Decision and Order Granting Respondents’ Application for a Stay Pending Judicial Review,” 24 April 2023, available at https://www.ftc.gov/system/files/ftc_gov/pdf/d09401commissionordergrantingstay.pdf.

[88] United States of America, et al., v. UnitedHealth Group Incorporated and Change Healthcare, Inc., CA No: 1:22-cv-0481 (CJN), Memorandum Opinion, 19 September 2022, pp. 1 and 6–7.

[89] United States of America, et al., v. UnitedHealth Group Incorporated and Change Healthcare, Inc., CA No: 1:22-cv-0481 (CJN), Memorandum Opinion, 19 September 2022, p. 31.

[90] United States of America, et al., v. UnitedHealth Group Incorporated and Change Healthcare, Inc., CA No: 1:22-cv-0481 (CJN), Memorandum Opinion, 19 September 2022, p. 53.

[91] United States of America, et al., v. UnitedHealth Group Incorporated and Change Healthcare, Inc., CA No: 1:22-cv-0481 (CJN), Notice of Appeal, 18 November 2022.

[92] United States of America, et al., v. UnitedHealth Group Incorporated and Change Healthcare, Inc., In the US Court of Appeals for the District of Columbia, No: 1:22-cv-0481, Order, 27 March 2023.

[93] In the Matter of Microsoft Corp. and Activision Blizzard, Inc. Before the Federal Trade Commission, Complaint, Redacted-Public Version, 8 December 2022 available at https://www.ftc.gov/system/files/ftc_gov/pdf/D09412MicrosoftActivisionAdministrativeComplaintPublicVersionFinal.pdf.

[94] Federal Trade Commission v. Microsoft Corporation, US District Court for the Northern District of California, No. 23-cv-02880, Preliminary Injunction Opinion Redacted Version, 10 July 2023, pp. 52-53.

[95] Federal Trade Commission v. Microsoft Corp., and Activision Blizzard, Inc., In the US Court of Appeals for the Ninth Circuit, Opening Brief of the Federal Trade Commission, 28 August 2023, p. 17.

[96] O’Brien, Matt, “Microsoft Can Move Ahead with Record $69 Billion Acquisition of Activision Blizzard, Judge Rules,” Associated Press, 11 July 2023, available at https://apnews.com/article/microsoft-activision-xbox-playstation-call-of-duty-2322c62e67e6c1316b3ce043e66cff62.

[97] See Cunningham, Colleen, Florian Ederer, and Song Ma (2021), “Killer Acquisitions,” Journal of Political Economy, 129 (3): 649-702.

[98] “Visa and Plaid Abandon Merger After Antitrust Division’s Suit to Block,” Department of Justice, 12 January 2021, available at https://www.justice.gov/opa/pr/visa-and-plaid-abandon-merger-after-antitrust-division-s-suit-block">https://www.justice.gov/opa/pr/visa-and-plaid-abandon-merger-after-antitrust-division-s-suit-block.

[99] “Statement of Ian Conner, Director of the FTC’s Bureau of Competition, Regarding the Announcement that The Procter & Gamble Company has Abandoned Its Proposed Acquisition of Billie, Inc.,” FTC Press Release, 5 January 2021, available at https://www.ftc.gov/news-events/press-releases/2021/01/statement-ian-conner-director-ftcs-bureau-competition-regarding.

[100] Federal Trade Commission v. Meta Platforms, Inc., et al., U.S. District Court for the Northern District of California, Complaint for a Temporary Restraining Order and Preliminary Injunction Pursuant to Section 13(B) of the Federal Trade Commission Act (redacted), pp. 12–16, 27 July 2022.

[101] Federal Trade Commission v. Meta Platforms, Inc., et al., U.S. District Court for the Northern District of California, Complaint for a Temporary Restraining Order and Preliminary Injunction Pursuant to Section 13(B) of the Federal Trade Commission Act (redacted), p. 18, 27 July 2022.

[102] Federal Trade Commission v. Meta Platforms, Inc., et al., U.S. District Court for the Northern District of California, Complaint for a Temporary Restraining Order and Preliminary Injunction Pursuant to Section 13(B) of the Federal Trade Commission Act (redacted), p. 6, 27 July 2022.

[103] Order Denying Plaintiff’s Motion for Preliminary Injunction, FTC v. Meta Platforms et al. U.S. N CA, 31 January 2023, p. 37. The court noted that “neither party has presented the Court with a working definition of ‘nascency,’ such that it can distinguish a nascent market from a more mature market.” Instead, the Court believed the “nascency” label was used by the parties “as a proxy for more observable market descriptions, such as highly differentiated products, unstable market shares, and new entrants” and gave “limited weight” to the term and chose to “focus instead on the underlying market indicators” .

[104] Prepared Statement of the Federal Trade Commission Before the United States Senate Committee on the Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights “Oversight of the Enforcement of the Antitrust Laws,” 20 September 2022, p. 7, available at https://www.ftc.gov/system/files/ftc_gov/pdf/P210100SenateAntitrustTestimony09202022.pdf.

[105] Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya in the Matter of JAB Consumer Fund/SAGE Veterinary Partners Commission File No. 2110140, 13 June 2022, p. 2, available at https://www.ftc.gov/system/files/ftc_gov/pdf/2022.06.13%20-%20Statement%20of%20Chair%20Lina%20M.%20Khan%20Regarding%20NVA-Sage%20-%20new.pdf.

[106] Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya in the Matter of JAB Consumer Fund/SAGE Veterinary Partners Commission File No. 2110140, 13 June 2022, p. 3, available at https://www.ftc.gov/system/files/ftc_gov/pdf/2022.06.13%20-%20Statement%20of%20Chair%20Lina%20M.%20Khan%20Regarding%20NVA-Sage%20-%20new.pdf.

[107] Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya in the Matter of JAB Consumer Fund/SAGE Veterinary Partners Commission File No. 2110140, 13 June 2022, p. 2, available at https://www.ftc.gov/system/files/ftc_gov/pdf/2022.06.13%20-%20Statement%20of%20Chair%20Lina%20M.%20Khan%20Regarding%20NVA-Sage%20-%20new.pdf (emphasis in original). See also, In the Matter of JAB Consumer Partners SCA SICAR, National Veterinary Associates, Inc., and SAGE Veterinary Partners, LLC, Before the Federal Trade Commission, Docket No. C-4766, Decision and Order, 2 August 2022, available at https://www.ftc.gov/system/files/ftc_gov/pdf/2110140C4766NVASAGEOrder.pdf.

[108] Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya in the Matter of JAB Consumer Fund/SAGE Veterinary Partners Commission File No. 2110140, 13 June 2022, p. 2, available at https://www.ftc.gov/system/files/ftc_gov/pdf/2022.06.13%20-%20Statement%20of%20Chair%20Lina%20M.%20Khan%20Regarding%20NVA-Sage%20-%20new.pdf.

[109] Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya in the Matter of JAB Consumer Fund/SAGE Veterinary Partners Commission File No. 2110140, 13 June 2022, p. 3, available at https://www.ftc.gov/system/files/ftc_gov/pdf/2022.06.13%20-%20Statement%20of%20Chair%20Lina%20M.%20Khan%20Regarding%20NVA-Sage%20-%20new.pdf.

[110] Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya in the Matter of JAB Consumer Fund/SAGE Veterinary Partners Commission File No. 2110140, 13 June 2022, p. 3, available at https://www.ftc.gov/system/files/ftc_gov/pdf/2022.06.13%20-%20Statement%20of%20Chair%20Lina%20M.%20Khan%20Regarding%20NVA-Sage%20-%20new.pdf.

[111] Delrahim, Makan, “Antitrust Attacks on Private Equity Hurt Consumers – Regulators Ignore Research Showing Their Investments Promote Competition and Increase Productivity,” Wall Street Journal, 31 July 2022, available at https://www.wsj.com/articles/antitrust-attacks-on-private-equity-hurt-consumers-lina-khan-ftc-recession-competition-management-expertise-capital-11659271442.

[112] “[A]lthough the Commission majority called for additional remediation due to JAB being a private equity firm, the Complaint did not indicate any reason why this fact about JAB makes this or any other private equity transaction more likely to raise competition concerns.” Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson, Federal Trade Commission, Before the Subcommittee on Competition Policy, Antitrust, and Consumer Rights of the U.S. Senate Committee on the Judiciary, 20 September 2022, footnote 14, available at https://www.ftc.gov/system/files/ftc_gov/pdf/Phillips%20Wilson%20dissent%20oversight%20hearing%20FINAL%209.16.22%20%28002%29.pdf.

[113] United States of America v. United States Sugar Corporation, et al., CA No: 21-1644 (MN), Judgment, 23 September 2022.

[114] Perlman, Matthew, “Delaware Court Refuses to Block Sugar Deal,” Law360, 23 September 2022, available at https://www.law360.com/competition/articles/1533555.

[115] United States of America v. United States Sugar Corporation, et al., No. 22-2806 (U.S. Court of Appeals for 3rd Circuit) 18 January 2023.

[116] Koenig, Bryan, “2 Mistrials, 1 Acquittal & A DOJ Listening Problem,” Law360, 8 July 2022, available at https://www.law360.com/articles/1509878/2-mistrials-1-acquittal-a-doj-listening-problem.

[117] Perlman, Matthew, “DOJ Told to Think Over 3rd Price-Fixing Trial,” Law360, 15 April 2022, available at https://www.law360.com/articles/1484588.

[118] Salvatore, Cara, “5 Chicken Execs Acquitted in Denver Antitrust Trial,” Law360, 7 July 2022, available at https://www.law360.com/articles/1509643/5-chicken-execs-acquitted-in-denver-antitrust-trial.

[119] Perlman, Matthew, “DOJ Drops Last Chicken Price-Fixing Case,” Law360, 17 October 2022, available at https://www.law360.com/articles/1540449.

[120] United States of America, v. Bertelsmann SE & Co. KGaA, Penguin Random House, LLC, ViacomCBS, Inc., and Simon & Schuster, Inc., CA No: 21-2886-FYP, Memorandum Opinion, 31 October 2022, p. 2.

[121] United States of America, v. Bertelsmann SE & Co. KGaA, Penguin Random House, LLC, ViacomCBS, Inc., and Simon & Schuster, Inc., CA No: 21-2886-FYP, Memorandum Opinion, 31 October 2022, p. 2.

[122] United States of America, v. Bertelsmann SE & Co. KGaA, Penguin Random House, LLC, ViacomCBS, Inc., and Simon & Schuster, Inc., CA No: 21-2886-FYP, Memorandum Opinion, 31 October 2022, p. 80.

[123] “Justice Department Statements on District Court Ruling Enjoining American Airlines and JetBlue’s Northeast Alliance,” Department of Justice, 19 May 2023, available at https://www.justice.gov/opa/pr/justice-department-statements-district-court-ruling-enjoining-american-airlines-and-jetblue-s.

[124] United States of America, State of Arizona, State of California, District of Columbia, State of Florida, Commonwealth of Massachusetts, Commonwealth of Pennsylvania, and Commonwealth of Virginia, v. American Airlines Group and JetBlue Airways Corporation, 1:21-cv-11558, Findings of Fact and Conclusions of Law, 19 May 2023, pp. 92-93.

[125] Dubrow, Jon B., “Assessing the State of Affairs in FTC/DOJ Merger Enforcement,” Reuters, 10 July 2023, available at https://www.reuters.com/legal/transactional/assessing-state-affairs-ftcdoj-merger-enforcement-2023-07-10/.

[126] Billman, Logan and Steven C. Salop (2023), “Merger Enforcement Statistics: 2001-2020,” Antitrust Law Journal, 85(1): 1-66 at Table 1.

[127] Spring 2022 Enforcers Summit, 4 April 2022, p. 14, available at https://www.justice.gov/atr/page/file/1494606/download.

[128] Koenig, Bryan, “Enforcer’ Antitrust Overhaul Just Getting Started,” Law360, 31 August 2022, available at https://www.law360.com/articles/1526376.

[129] The Office of Technology’s specific responsibilities will include: (1) “Strengthen and support law enforcement investigations and actions”; (2) “Advise and engage with staff and the Commission on policy and research initiatives”; and (3) “Highlight market trends and emerging technologies that impact the FTC’s work.” See, “FTC Launches New Office of Technology to Bolster Agency’s Work,” Federal Trade Commission, 17 February 2023, available at https://www.ftc.gov/news-events/news/press-releases/2023/02/ftc-launches-new-office-technology-bolster-agencys-work.

The FTC had previously opened a Technology Enforcement Division in 2023 (See, Federal Trade Commission, Inside the Bureau of Competition – FTC Technology Enforcement Division, available at https://www.ftc.gov/about-ftc/bureaus-offices/bureau-competition/inside-bureau-competition/technology-enforcement-division).

[130] The FTC had previously investigated Google’s business practices regarding search and related topics but declined to take action. See “Statement of the Federal Trade Commission Regarding Google’s Search Practices,” In the Matter of Google Inc., FTC File Number 111-0163, 3 January 2013, available at https://www.ftc.gov/sites/default/files/documents/public_statements/statement-commission-regarding-googles-search-practices/130103brillgooglesearchstmt.pdf.

[131] “Justice Department Sues Monopolist Google for Violating Antitrust Laws: Department Files Complaint Against Google to Restore Competition in Search and Advertising Markets,” Department of Justice, 20 October 2020, available at https://www.justice.gov/opa/pr/justice-department-sues-monopolist-google-violating-antitrust-laws.

[132] The State of Texas, et al. v. Google LLC, U.S. District Court for the Eastern District of Texas Sherman Division, No. 4:20-cv-00957, Complaint, 16 December 2020. See also, The State of Texas, et al. v. Google LLC, U.S. District Court for the Eastern District of Texas Sherman Division, No. 4:20-cv-00957-SDJ, Amended Complaint, 15 March 2021.

[133] The State of Colorado, et al. v. Google LLC, U.S. District Court for the District of Columbia, No. 1:20-cv-03715, Complaint, 17 December 2020.

[134] The State of Utah, et al. v. Google LLC, U.S. District Court for the Northern District of California San Francisco Division, No. 3:21-cv-05227, Complaint, 7 July 2020.

[135] “Justice Department Sues Google for Monopolizing Digital Advertising Technologies,” Department of Justice, 24 January 2023, available at https://www.justice.gov/opa/pr/justice-department-sues-google-monopolizing-digital-advertising-technologies.

[136] Nylen, Leah, “Google Advertising Antitrust Suit Headed to Trial in March 2024,” Bloomberg News, 24 March 2023, available at https://news.bloomberglaw.com/antitrust/google-advertising-antitrust-suit-headed-to-trial-in-march-2024.

[137] The FTC’s initial complaint had been dismissed for failing to plead sufficient facts to establish the elements of a Section 2 of the Sherman Act claim, including an allegation of market power. See Federal Trade Commission v. Facebook Inc., U.S. District Court for the District of Columbia, No. 1:20-cv-03590-JEB, Memorandum Opinion, 28 June 2021. However, the Court provided leave for the FTC to file an amended complaint, which the FTC filed after a 3-2 vote. See Federal Trade Commission v. Facebook Inc., 1:20-cv-03590-JEB, U.S. District Court for the District of Columbia, First Amended Complaint for Injunctive and Other Equitable Relief, 19 August 2021.

[138] The FTC’s Press Release describes its case against Facebook and the participation of states in the investigation. See, “FTC Sues Facebook for Illegal Monopolization,” FTC Press Release, 9 December 2020, available at https://www.ftc.gov/news-events/press-releases/2020/12/ftc-sues-facebook-illegal-monopolization">https://www.ftc.gov/news-events/press-releases/2020/12/ftc-sues-facebook-illegal-monopolization. The states are not co-plaintiffs with the FTC in this litigation. Instead, 46 states, DC and the territory of Guam filed a parallel litigation against Facebook. See The State of New York, et al. v. Facebook, Inc., U.S. District Court for the District of Columbia, No. 1:20-cv-03589, Complaint, 9 December 2020. The District Court dismissed the states’ Complaint, finding that the states had waited too long to challenge Facebook’s acquisitions of Instagram and WhatsApp. The states appealed the dismissal of their suit, an appeal that is pending at the time of this writing.

[139] Federal Trade Commission v. Facebook Inc., U.S. District Court for the District of Columbia, No. 1:20-cv-03590-JEB, First Amended Complaint for Injunctive and Other Equitable Relief, 19 August 2021, paragraph 8.

[140] District of Columbia v. Amazon.com, Inc., Superior Court of the District of Columbia Civil Division, CA 001775 B, Order, 1 August 2022.

[141] District of Columbia v. Amazon.com, Inc., Superior Court of the District of Columbia Civil Division, CA 001775 B, Notice of Appeal, 25 August 2022.

[142] The People of the State of California v. Amazon.com, Superior Court of the State of California County of San Francisco, Complaint, 14 September 2022.

[143] The People of the State of California v. Amazon.com, Superior Court of the State of California County of San Francisco, Order on Amazon’s Demurrer to the Complaint, 30 Mar 2023.

[144] The People of the State of California v. Amazon.com, Superior Court of the State of California County of San Francisco, Defendant Amazon.com, Inc.’s Cross-Complaint, 30 May 2023.

[145] Sisco, Josh, “Apple Faces Growing Likelihood of DOJ Antitrust Suit,” Politico, 26 August 2022, available at https://www.politico.com/news/2022/08/26/justice-department-antitrust-apple-00053939.

[146] Tilley, Aaron, “U.S. Escalates Apple Probe, Looks to Involve Antitrust Chief,” The Wall Street Journal, 15 February 2023, available at https://www.wsj.com/articles/u-s-escalates-apple-probe-looks-to-involve-antitrust-chief-2fa86ddf.

[147] Barrabi, Thomas, “DOJ Reportedly Escalates Apple Antitrust Probe,” New York Post, 15 February 2023, available at https://nypost.com/2023/02/15/doj-escalates-apple-antitrust-probe-report/.

[148] Reuters, “U.S. antitrust agency preparing lawsuit against Amazon – WSJ,” Reuters, 3 February 2023, available at https://www.reuters.com/legal/us-ftc-prepares-potential-antitrust-lawsuit-against-amazon-wsj-2023-02-03/.

[149] Edgerton, Anna and Leah Nylen, “Lina Khan Is Coming for Amazon, Armed with an FTC Antitrust Suit,” Bloomberg News, 29 June 2023, available at https://www.bloomberg.com/news/articles/2023-06-29/amazon-major-ftc-antitrust-case-expected-in-coming-weeks#xj4y7vzkg.

[150] Edgerton, Anna and Leah Nylen, “Lina Khan Is Coming for Amazon, Armed with an FTC Antitrust Suit,” Bloomberg News, 29 June 2023, available at https://www.bloomberg.com/news/articles/2023-06-29/amazon-major-ftc-antitrust-case-expected-in-coming-weeks#xj4y7vzkg.

[151] McCabe, David, “Amazon to Meet Regulators as U.S. Considers Possible Antitrust Suit,” The New York Times, 7 August 2023, available at https://www.nytimes.com/2023/08/07/technology/amazon-ftc-antitrust.html.

[152] The Court described the two-sided platform developed by American Express as a “transaction” platform competing to sell credit card transactions. Any analysis of only one side of this platform would be incomplete due to bi-directional “indirect network effects.” See Ohio v. American Express Co., 138 S. Ct. 2274 (2018).

[153] Epic Games Inc., v. Apple Inc., U.S. District Court for the Northern District of California, No. 4:20-cv-05640-YGR, Rule 52 Order After Trial on the Merits, 10 September 2021.

[154] Perlman, Matthew, “9th Circ. Upholds Trial Rulings in Epic-Apple Antitrust Suit,” Law360, 24 April 2023, available at https://www.law360.com/articles/1600479.

[155] Perlman, Matthew and Bryan Koenig, “Antitrust Watchers Are About to Have Their Hands Full,” Law360, 15 August 2023, available at https://www.law360.com/articles/1710251/antitrust-watchers-are-about-to-have-their-hands-full.

[156] Law360, “High Court Lets Apple Keep App Store Rules Pending Appeal,” 9 August 2023, available at https://www.law360.com/articles/1709489/high-court-lets-apple-keep-app-store-rules-pending-appeal.

[157] “Federal Trade Commission and Justice Department Seek to Strengthen Enforcement Against Illegal Mergers,” FTC Press Release, 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.

[158] “FTC and DOJ Seek Comment on Draft Merger Guidelines,” FTC Press Release, 19 July 2023, available at https://www.ftc.gov/news-events/news/press-releases/2023/07/ftc-doj-seek-comment-draft-merger-guidelines. The FTC commissioners voted 3-0 to approve the Draft Merger Guidelines. At the time of the vote, there were no Republican commissioners. The banking industry has its own set of merger guidelines which were last updated in 1995. Recently, AAG Kanter stated that “the time is ripe for us to revisit the Bank Merger Guidelines to make sure we are applying he legal holdings and principles of Philadelphia National Bank and its progeny in a manner that is consistent with modern market realities.” (DOJ, “Assistant Attorney General Jonathan Kanter Delivers Keynote Address at the Brookings Institution’s Center on Regulation and Markets Event ‘Promoting Competition in Banking,’” 20 June 2023, available at https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-delivers-keynote-address-brookings-institution.).

[159] FTC, “Statement of Commissioner Rebecca Kelly Slaughter,” 19 July 2023, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p234000_bks_statement_re_draft_merger_guidelines_final.pdf. Previously, the agencies had different guidelines for horizontal and vertical mergers. The agencies issued a revision of the vertical merger guidelines on 30 June 2020. However, the FTC withdrew the vertical merger guidelines in September 2021 because these included “unsound economic theories that are unsupported by the law or market realities”. (FTC, “Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary,” 15 September 2021, available at https://www.ftc.gov/news-events/news/press-releases/2021/09/federal-trade-commission-withdraws-vertical-merger-guidelines-commentary). The Draft Guidelines fill the void left by the withdrawal and are intended to apply to all mergers, horizontal and vertical alike.

[160] FTC, “Statement of Commissioner Alvaro M. Bedoya,” 19 July 2023, available at https://www.ftc.gov/system/files/ftc_gov/pdf/p234000_merger_guidelines_statement_bedoya_final.pdf.

[161] FTC and DOJ, “Merger Guidelines,” 19 July 2023, available at https://www.ftc.gov/legal-library/browse/ftc-doj-merger-guidelines-draft-public-comment.

[162] In contrast, the current horizontal merger guidelines begin with a background on agencies process, the types and source of evidence considered by agencies, followed by a discussion of topics considered as part of a merger review (eg, Market Definition, Unilateral Effects). See FTC and DOJ, “Horizontal Merger Guidelines,” 19 August 2010, available at https://www.justice.gov/atr/public/guidelines/hmg-2010.pdf.

[163] FTC, “FTC and DOJ Seek Comment on Draft Merger Guidelines,” 19 July 2023, available at https://www.ftc.gov/news-events/news/press-releases/2023/07/ftc-doj-seek-comment-draft-merger-guidelines.

[164] Draft Merger Guidelines, p. 2.

[165] Draft Merger Guidelines, pp. 3-4.

[166] Draft Merger Guidelines, pp. 9-10.

[167] Draft Merger Guidelines, p. 6.

[168] Draft Merger Guidelines, p. 19.

[169] FTC and DOJ, “Horizontal Merger Guidelines,” 19 August 2010, available at https://www.justice.gov/sites/default/files/atr/legacy/2010/08/19/hmg-2010.pdf, at § 5.3.

[170] Draft Merger Guidelines, p. 30.

[171] Draft Merger Guidelines, p. 11.

[172] Draft Merger Guidelines, p. 25.

[173] Draft Merger Guidelines, fn. 76.

[174] Draft Merger Guidelines, p. 26.

[175] Draft Merger Guidelines, p. 26.

[176] See, eg, Scott Morton, Fiona, and Herbert Hovenkamp (2017), "Horizontal Shareholding and Antitrust Policy". The Yale Law Journal 127: 1742-2203, p. 2026.

[177] Draft Merger Guidelines, p. 27.

[178] See, eg, DOJ, “Directors Resign from the Boards of Five Companies in Response to Justice Department Concerns About Potentially Illegal Interlocking Directorates,” 19 October 2022, available at https://www.justice.gov/opa/pr/directors-resign-boards-five-companies-response-justice-department-concerns-about-potentially; and FTC, “FTC Acts to Prevent Interlocking Directorate Arrangement, Anticompetitive Information Exchange in EQT, Quantum Energy Deal,” 16 August 2023, available at https://www.ftc.gov/news-events/news/press-releases/2023/08/ftc-acts-prevent-interlocking-directorate-arrangement-anticompetitive-information-exchange-eqt.

[179] Draft Merger Guidelines, p. 28.

[180] FTC, “FTC and DOJ Propose Changes to HSR Form for More Effective, Efficient Merger Review”, 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.

[181] Stallings, William et al., “FTC’s Proposed HSR Changes Will Complicate Merger Filings,” Law360, 9 August 2023, available at https://www.law360.com/articles/1707941/ftc-s-proposed-hsr-changes-will-complicate-merger-filings; and Koenig, Bryan, “’Shocking’ Merger Filing Overhaul Could Increase Costs 10x,” Law360, 28 June 2023, available at https://www.law360.com/articles/1693983.

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