The Antitrust Review of the Americas 2019

United States: Government Investigations

06 September 2018

King & Spalding

Litigated merger challenges

AT&T/Time Warner

On 20 November 2017, the Department of Justice (DOJ) filed a complaint to block AT&T/DirectTV's US$85 billion acquisition of Time Warner Inc, one of the largest mergers in American history.1 The transaction was announced on 22 October 2016 and is expected to put Time Warner's vast network offerings under the AT&T umbrella, including TBS, TNT, CNN, Cartoon Network, HBO and Cinemax, as well as programming offerings such as Game of Thrones, NCAA March Madness and various MLB and NBA games.2 The DOJ's vertical challenge alleged that the combined company would harm its rivals by forcing them to pay hundreds of millions of dollars more per year for the right to distribute those networks.3 DOJ officials also pointed to the parties' past statements in which DirectTV stated that such vertically integrated companies 'can much more credibly threaten to withhold programming from rival [distributors]' and can 'use such threats to demand higher prices and more favorable terms'.4 Politicians and policymakers, including then-candidate Donald Trump, expressed vocal opposition to the transaction when it was announced.5 AT&T previously attempted to purchase T-Mobile in 2011, but abandoned the transaction after the DOJ filed suit in the DC District Court alleging that the merger violated antitrust laws.6

A bench trial on the merits of the transaction began on 19 March 2018 before Judge Richard Leon in US District Court for the District of Columbia.7 Prior to trial, Mark Delrahim, chief of the DOJ's antitrust division, weighed in on the dispute, stating that the deal would result in higher pricing and less innovation.8 A group of former DOJ attorneys also filed an amicus brief in the case arguing that the Trump administration's challenge of the deal is unconstitutional if intended as punishment for CNN's news coverage.9 The six-week, high-profile trial drew plenty of press coverage, and the DOJ suffered a blow when a Comcast Cable executive testified that he did not expect the merger to have an impact on its negotiation strategy.10

On 12 June 2018, Judge Richard Leon approved the merger, holding that the DOJ had failed to show that the merger, if completed, likely would create substantial anticompetitive harm.11 Judge Leon rejected the DOJ's contention that the merged parties would have an incentive to leverage 'must-have' content at higher rates from rivals because pay-TV licensing terms are born out of a very tough series of affiliate negotiations.12 The opinion also emphasised that the merger would result in hundreds of millions of dollars in cost savings to AT&T customers and that, unlike horizontal mergers, no competitor will be eliminated through vertical integration.13 Ultimately, Judge Leon's clearance of the deal imposed no conditions on the parties to close and, in a rather unorthodox move, he urged the DOJ not to attempt to seek a stay or appeal to try to sink the deal.14 The DOJ did not seek a stay, and the parties finalised the deal on 15 June 2018.15 On 12 July 2018, the DOJ filed a Notice of Appeal to the United States Court of Appeals for the District of Columbia Circuit.16

Tronox/Cristal

The Fair Trade Commission (FTC) issued an administrative complaint on 5 December 2017 challenging the merger of two major producers of chemicals used in paint, plastic and paper products.17 The US$1.67 billion transaction would give Connecticut-based Tronox a 24 per cent stake in Cristal, which is headquartered in Saudi Arabia.18 The complaint stated that the transaction would reduce competition in the North American chloride process titanium dioxide market, result in coordinated effects among remaining competitors and increase the risk of future output restrictions.19 The FTC alleged that the unusually high level of price transparency in the titanium dioxide market would exacerbate the interdependence among rival firms post-merger, and the merger would serve to increase this transparency because Cristal, now a private company, would report its pricing information through public disclosures after merging with Tronox.20 Tronox has argued that the merger would increase competition because it would allow the combined company to better compete with Chinese producers and increase the global supply of titanium dioxide.21 Additionally, Tronox has claimed the combined entity would allow it to expand output at Cristal's underperforming facilities and would result in transaction-specific synergies.22 The challenge comes in the wake of the Third Circuit's recent decision in Valspar Corp v EI DuPont de Nemours and Co, a price-fixing case, which found a high risk of coordinated integration in the titanium dioxide industry.23

On 23 January 2018, Tronox filed a separate action against the FTC in the Northern District of Mississippi, alleging that the FTC's challenge to block the deal without also seeking a court order violates the Administrative Procedure Act by robbing Tronox of the opportunity to seek a quick decision on whether the FTC's objections to the deal have merit.24 The suit alleged that the FTC's administrative challenge would have forced the parties to miss the 'expiration date' of the underlying merger agreement.25 However, the parties later agreed to extend that date until 31 March 2019.26 Tronox withdrew its suit against the FTC on 7 March 2017, stating that the suit was no longer necessary given the amended timing agreement.27 On 5 May 2018, Tronox filed a motion to stay an evidentiary hearing and withdrew the matter from adjudication 'to allow renewed settlement discussions' and, alternatively, to ask the FTC to seek a preliminary injunction.28 The FTC denied the motion on 18 May 2018, stating that Commission Rule 3.25 requires a specific settlement proposal before it can pause the challenge.29 Administrative hearings are scheduled to proceed through June 2018.30 The deal has already received regulatory approvals from competition authorities in Australia, China, New Zealand, Turkey, South Korea and Colombia.31

Sanford Health/Sanford Bismarck/Mid Dakota Clinic

On 21 June 2017, the FTC, acting jointly with the Office of the Attorney General of North Dakota, filed an administrative complaint to block the proposed merger of North Dakota healthcare providers, Sanford Health, Sanford Bismarck and Mid Dakota Clinic, PC.32 According to the complaint, the transaction – which would merge two of the region's closest rivals – would create a physician group with at least 75 per cent share of physician primary care and several other healthcare services.33 The complaint specifically alleged that the transaction would 'significantly reduce competition for adult primary care physician services, pediatric services, obstetrics and gynecology services, and general surgery physician services in the greater Bismarck and Mandan metropolitan area' and requested that the deal be enjoined, pending an administrative trial on the merits.34

On 14 December 2017, US magistrate judge Alice Senechal for the District of North Dakota sided with the FTC and the Attorney General of North Dakota in issuing a preliminary injunction, stating that the FTC would likely succeed in proving that the deal would harm competition in several services and result in a combined entity possessing a 75 per cent market share for adult primary care physicians and a 100 per cent market share for general surgery physicians.35 Additionally, Judge Senechal stated that the merging parties' synergies defence was insufficient to overcome the presumption of illegality because the transaction would result in a near monopoly.36

Two days later, Sanford and Mid Dakota appealed to the Eighth Circuit, claiming that the District Court erred in defining the relevant market and ignored pro-competitive efficiencies.37 Sanford Health also argued that the buying power of Blue Cross Blue Shield of North Dakota would negate any anticompetitive effects resulting from the merger and that Mid Dakota may fail in the absence of the merger.38 An FTC administrative hearing is scheduled to begin 21 days after the Eighth Circuit's decision is rendered; however, Sanford and Mid Dakota have stated they will abandon the merger if the injunction is upheld.39

Wilhelm Wilhelmsen/Drew Marine

On 23 February 2018, the FTC filed an administrative complaint challenging the proposed merger of the world's two largest suppliers of chemicals used to treat boiler and engine cooling water on large ocean vessels: Wilhelmsen Maritime Services, based in Norway, and Drew Marine Group, based in New Jersey.40 In its complaint, the FTC alleged that the merger, if consummated, would result in a company controlling at least 60–80 per cent of the global marine water treatment chemical and service market, leaving only inferior alternatives for global fleets.41 The merging parties argued that the FTC's relevant market definition – global fleets – was too broad and ignored commercial realities as well as differentiation among water treatment chemicals.42 Additionally, the merging parties claimed that the industry has low barriers to entry and the merger would encourage new competitors to enter the market.43

The merging parties moved to stay the administrative trial in light of the parallel proceeding in DC District Court on whether to issue a preliminary injunction.44 That same day, Judge Tanya S Chutkan granted a temporary restraining order to halt the transaction, until at least three days after a preliminary injunction has been ruled upon.45 In its motion seeking a preliminary injunction, the FTC alleged that the parties are a true duopoly, and that the merger would eliminate head-to-head competition and result in an extraordinarily high concentration in the relevant product market for the supply of marine water treatment products and services to global fleets.46 Additionally, the FTC argued that there was no prospect for entry of a competitor into the market to ameliorate anticompetitive effects due to the importance of scale, expertise and reputation in the industry.47 The bench trial began on 29 May 2018, with the transacting parties stating that they would abandon the transaction if a preliminary injunction is granted.48

Settlements

Bayer/Monsanto

On 29 May 2018, the DOJ filed a complaint in the US District Court for the District of Columbia to challenge the merger between Bayer AG and Monsanto, the world's two largest agricultural companies.49 The complaint alleged that the merger, as proposed, would eliminate competition in the market for genetically modified seeds for cotton, canola and soybeans, as well as the market for herbicides.50 The FTC also stated that the merger's vertical integration would give the combined company the incentive and ability to harm its seed rivals by raising the price of inputs for genetically modified seeds.51 Importantly, the FTC alleged that the merger would undermine the high degree of innovation in the industry to develop new agricultural products for farmers, as both companies have reputations of being innovative companies.52

The DOJ simultaneously filed a proposed settlement granting conditional approval for the US$66 billion transaction, which would require Bayer AG to divest businesses and assets collectively worth approximately US$9 billion – the largest negotiated merger divestiture in history – in order to fully satisfy horizontal and vertical competition concerns.53 The agreement would also require Bayer to divest its products that directly compete with Monsanto, including its cotton, canola, soybean and vegetable seed businesses.54 Additionally, the agreement would require divestiture of Bayer's Liberty herbicide business, a key competitor of Monsanto's well-known Roundup herbicide.55 It also would require structural divestitures in Bayer's seed treatment business, certain intellectual property and research capabilities, and complimentary assets such as Bayer's 'digital agriculture' business.56 European antitrust regulators conditionally approved the merger on 23 March 2018, subject to divestiture commitments affecting European markets.57

Northrup Grumman/Orbital ATK

On 5 June 2018, the FTC granted conditional approval of Northrup Grumman's acquisition of Orbital AK, but required Northrup to sell its solid rocket motors (SRMs) to its competitors on a non-discriminatory basis and to erect firewalls separating its SRM business from the rest of its operations.58 The US$7.8 billion transaction, which was announced on 18 September 2017, paved the way for Northrup Grumman – one of the four companies capable of supplying the United States government with missile systems – to merge with Orbital ATK, the premier supplier of SRMs.59

According to the complaint, the acquisition would likely be anticompetitive by allowing the combined entity to withhold access to its solid rocket motors or increase SRM prices to competitors.60 The FTC argued that the industry is so highly concentrated that the acquisition would provide Northrop Grumman with the ability and incentive to foreclose missile system prime contractor competitors by denying them access to Northrop Grumman's SRMs or by making pricing, personnel, schedule, investment, design and other decisions that disadvantage those competitors.61 Additionally, the FTC argued that the United States government would be harmed because of the increased cost of missile systems and lost innovation in the missile space.62 The consent order also provides for the Department of Defense to appoint a compliance officer to oversee Northrop Grumman's conduct pursuant to the settlement.63 Notably, the FTC stated that although it typically disfavours behavioural remedies such as those proposed in the order, it believes that such an approach is appropriate given the peculiar characteristics of the defence industry.64

Danone/WhiteWave

The DOJ conditioned approval of Paris-based Danone's US$12.5 billion acquisition of The WhiteWave Foods Company on the parties divesting Danone's Stonyfield Farms business to an independent buyer.65 The merging parties are the top two purchasers of raw organic milk in the northeast and the producers of the three leading brands of organic milk in the United States.66

The DOJ stated its primary concern was the possibility of cooperative behaviour, including strategising, coordinated marketing and the exchange of confidential information, which would have resulted in farmers receiving less favourable contract terms for the purchase of their raw organic milk.67 The DOJ also stated that Danone's long-term strategic partnership with WhiteWave's primary competitor gave rise to potentially misaligned interests between the competitor and the merged firm.68 The DOJ stated that the proposed acquisition would have aligned the interests of the producers of Stonyfield, Horizon and Organic Valley, the only three national fluid organic milk brands, and risked higher prices and fewer choices for US consumers.69 The final order approving the divestiture was filed on 13 July 2017.70

Mergers abandoned prior to litigation

JM Smucker/Conagra Brands

On 30 May 2017, JM Smucker Co, which owns the Crisco cooking oil brand, announced its intentions to acquire Conagra Brands' Wesson cooking oil brand for US$258 million, thereby obtaining all intellectual property rights to the Wesson brand, as well as inventory and manufacturing equipment.71 The transaction would give JM Smucker at least 70 per cent of the market for branded canola and vegetable oils sold to grocery stores and other retailers.72 In an administrative complaint filed on 5 March 2018, the FTC stated that the transaction would 'give Smucker the ability to raise prices to retailers, ultimately leading to higher prices for US consumers' and that the parties' internal documents revealed that eliminating price competition between the Cisco and Wesson brands was a leading rationale for the transaction.73 On 6 March 2018, Smucker stated that while it believes that the FTC underestimated the role of private label brands, the company determined that it was best to abandon the transaction.74 On 7 March 2017, the parties jointly moved to dismiss the complaint.75

Non-merger enforcement

Carolinas Healthcare System

On 9 June 2016, the DOJ and the North Carolina Attorney General brought a suit against the Carolinas Healthcare System (CHS), alleging that anti-steering provisions in its contracts are in violation of section 1 of the Sherman Act.76 The DOJ's complaint alleged that CHS, which has approximately a 50 per cent share in the sale of acute and inpatient services to health insurers in the Charlotte area, included provisions in its contracts that prevent insurers from introducing healthcare plans that encourage patients to obtain lower-priced medical services.77 The DOJ argued that the contracts restrict competition in two ways:

• they directly prevent insurers from offering networks that do not include CHS or tiered networks that feature CHS competitors; and

• they place restrictions on insurers that prevent them from providing truthful information to patients about the value of CHS's services compared to its competitors.78

The FTC and DOJ previously issued statements targeting anti-steering provisions on 28 October 2011.79

On 30 March 2017, Judge Robert Conrad of the District Court for the Western District of North Carolina authorised the case to go forward by denying CHS's motion for judgment on the pleadings, writing that it is plausible that the hospital system's market power has the potential for genuine adverse effects on competition.80 CHS argued that the Second Circuit's recent decision in United States v American Express Co, which found that similar contractual provisions did not harm competition, was a major blow to the DOJ's case.81 However, Judge Conrad rejected the comparison, noting that the case is not binding authority and it addressed liability, rather than the pleading requirements under a section 1 violation.82 Additionally, Judge Conrad said the Second Circuit case did not speak to customer loyalty in the context of a hospital system, which was directly at issue in the DOJ's present investigation.83 The litigation is ongoing in the Western District of North Carolina, with evidentiary rulings scheduled in June 2018.84

Steves & Sons/Jeld-Wen

On 6 June 2018, the DOJ filed a statement of interest regarding equitable relief in a lawsuit in the Eastern District of Virginia filed by Steves & Sons – an interior door manufacturer headquartered in San Antonio – against its Charlotte-based competitor Jeld-Wen. 85 The lawsuit, which commenced on 29 June 2016, found that Jeld-Wen's acquisition of doorskin manufacturer Craftmaster Manufacturing was in violation of section 7 of the Clayton Act.86 The acquisition left Jeld-Wen as the only domestic doorskin manufacturer in the country.87 Steves & Sons accused Jeld-Wen of failing to disclose price inputs and leveraging its position as the only domestic doorskin producer to drive door manufacturers out of business.88 In response, Jeld-Wen argued that Steves & Sons cannot allege injury in the market for interior doors because it competes with Jeld-Wen in that market, even though Steves & Son is simultaneously a customer of Jeld-Wen.89 After a jury awarded Steves & Sons US$58 million in damages on 15 February 2018, Steves & Sons sought equitable relief under section 16 of the Clayton Act, asking for a divestiture of Jeld-Wen's doorskins manufacturing facility in Pennsylvania to an independent competitor.90 Steves & Sons also requested that the buyer of the facility be required to enter into an eight-year supply agreement with Steves & Son.91 Attorneys for Steves & Sons have described the lawsuit as a 'David versus Goliath' battle between a family-run business (Steves) and a large publicly traded company (Jeld-Wen).92

The DOJ's statement of interest offers the District Court a conceptual framework for evaluating the divestiture, but declines to address the facts head-on.93 The DOJ supports the motion for divestiture arguing that only a structural remedy can restore lost competition in the doorskin market.94 However, DOJ also cautions that some of the conditions of the proposed divestiture – such as allowing Steves to bid on Jeld-Wen's assets and the requirement of an eight-year supply agreement – may be inconsistent with pro-competitive relief.95 Litigation is ongoing, with motions being filed as recently as 15 June 2018.96

Announced mergers

CVS/Aetna

On 3 December 2017, CVS Health announced its plans to acquire Aetna for US$69 billion in a vertical transaction that would pair up the largest retail pharmacy chain and one of the two largest pharmacy benefit managers (PBMs) with the third-largest health insurer in the United States.97 The transaction is expected to affect the upstream markets for retail pharmacy, the downstream market for health insurance, and the PBM sector.98

Federal regulators have said little about the deal; however, they issued Second Requests to the parties on 1 February 2018.99 Representatives from CVS and Aetna subsequently told members of Congress at a House Judiciary Committee hearing that the transaction is intended to help shift the nation's healthcare model more toward preventative care.100 On 26 March 2018, in an open letter to the Assistant Attorney General, the American Antitrust Institute urged the DOJ to challenge the deal, arguing that it will enhance the incentive for CVS-Aetna to exclude rivals and facilitate anticompetitive coordination among health insurers served by CVS-Caremark.101

Cigna/Express Scripts

On 8 March 2018, Cigna – one of the nation's five largest health insurers – announced its plans to acquire Express Scripts – the nation's largest pharmacy benefit manager – for US$67 billion.102 According to the parties, the transaction would result in approximately US$600 million in synergies and allow the companies to bring together patients' medical and pharmacy histories to lower healthcare costs.103 The DOJ issued Second Requests to both companies on 23 April 2018.104 The transaction comes after the DC Circuit affirmed a DC District Court's decision to block Anthem's US$54 billion acquisition of Cigna on 21 February 2017.105

Notes

1 Complaint at 1, United States v AT&T Inc, No. 2017-25 (DDC 20 November 2017), ECF No. 1.

2 News Release, AT&T Inc, AT&T to Acquire Time Warner (22 October 2016), available at http://about.att.com/story/att_to_acquire_time_warner.html.

3 Complaint, supra note 1, at 1.

4 Id.

5 Eric Kroh, Trump Vows To Block $85.4B AT&T-Time Warner Deal, Law360 (24 October 2016, 2:15 PM), available at https://www.law360.com/articles/854810.

6 Press Release, Dep't of Justice, Justice Department Files Antitrust Lawsuit to Block AT&T's Acquisition of T-Mobile (31 August 2011), www.justice.gov/opa/pr/justice-department-files-antitrust-lawsuit-block-att-s-acquisition-t-mobile.

7 Rick Mitchell, Wake Up Call: Trial Starts Today Over Blocked AT&T-Time Warner Deal, Big Law Business (19 March 2018), available at https://biglawbusiness.com/wake-up-call-trial-starts-today-over-blocked-att-time-warner-deal/.

8 nMichael Hiltzik, ‘Trump Administration Sues to Block AT&T/Time Warner Merger: Here’s why Trump is Doing the Right Thing for the Wrong Reason’, LA Times (20 November 2017, 3:05PM), available at www.latimes.com/business/hiltzik/la-fi-hiltzik-att-cnn-20171113-story.html.

9 Heidi Przybyla & Pete Williams, 'Former DOJ Officials Raise Trump AT&T Interference Concerns', NBC News (9 March 2018, 11:00PM), available at https://www.nbcnews.com/politics/justice-department/top-attorneys-try-help-t-challenge-potential-trump-interference-n855036.

10 Bryan Koenig, Comcast Exec Saps Gov't Theory On AT&T-Time Warner Union, Law360 (29 March 2018), available at https://www.law360.com/articles/1027592/comcast-exec-saps-gov-t-theory-on-at-t-time-warner-union.

11 United States v AT&T Inc, No. 17-2511 (DDC 12 June 2018).

12 Id at 98-99.

13 Id at 1.

14 Id at 170–73.

15 Sara Salinas, ‘AT&T Wins: Judge Clears $85 Billion Bid for Time Warner with No Conditions’, CNBC: Tech (12 June 2018, 4:14PM), available at https://www.cnbc.com/2018/06/12/att-time-warner-ruling.html.

16 Notice of Appeal, United States v AT&T Inc et al, 1:17-cv-02511-RJL (DDC 12 July 2018).

17 Complaint, In the Matter of Tronox Ltd, No. 9377 (FTC 5 December 2017).

18 Press Release, Fed. Trade Comm'n, FTC Challenges Proposed Merger of Major Titanium Dioxide Companies (5 December 2017), available at https://www.ftc.gov/news-events/press-releases/2017/12/ftc-challenges-proposed-merger-major-titanium-dioxide-companies.

19 Id at 4.

20 Id at 6.

21 Chuck Stanley, 'FTC Won't Pause Challenge to $2.4B Tronox-Cristal Deal', Law360 (17 May 2018, 8:18PM), available at https://www.law360.com/articles/1044717/ftc-won-t-pause-challenge-to-2-4b-tronox-cristal-deal.

22 Brief for FTC at 32, In the Matter of Tronox Ltd, No. 9377 (FTC 15 December 2017).

23 Valspar Corp v EI Du Pont De Nemours & Co, 873 F3d 185 (3d Cir. 2017).

24 Complaint at 1–6, Tronox Ltd v Fed. Trade Comm'n, No. 1:18cv10-SA-RP (ND Miss. 23 January 2018), ECF No. 1.

25 Id at 12.

26 Id at 14.

27 Notice of Voluntary Dismissal at 1–2, Tronox Ltd v Fed. Trade Comm'n, No. 1:18cv10-SA-RP (ND Miss. 3 March 2018), ECF No. 24.

28 Motion to Stay, Fed. Trade Comm'n v Tronox Ltd, No. 9377 (FTC 5 May 2018).

29 Denial of Motion to Stay at 3, Fed. Trade Comm'n v Tronox Ltd, No.9377. (FTC 16 May 2018).

30 Case Overview of Tronox/Cristal USA, FTC Enforcement, available at https://www.ftc.gov/enforcement/cases-proceedings/171-0085/tronoxcristal-usa (last updated 25 May 2018).

31 Melissa Zona, ‘Tronox’s Acquisition of Cristal Cleared by Saudi Arabia’s General Authority for Competition’, PR Newswire (29 January 2018 8:00 PM), available at https://www.prnewswire.com/news-releases/tronoxs-acquisition-of-cristal-cleared-by-saudi-arabias-general-authority-for-competition-300589408.html.

32 FTC Complaint at 1–4, In the Matter of Sanford Health, No. 9376 (FTC 21 June 2017).

33 Id.

34 Id.

35 Order Granting Injunction at 1–3, Fed. Trade Comm'n v Sanford Health, No. 1:17-cv-133 (DND 13 December 2017), ECF 137.

36 Memorandum Opinion Granting Injunction at 30–35, Fed. Trade Comm'n v Sanford Health, No. 1:17-cv-133 (DND 15 December 2017), ECF 140.

37 Brief for Appelees at 2–15, Fed. Trade Comm'n v Sanford Health, No. 17-3783 (8th Cir. 5 March 2018).

38 See Appellants' Statement of Issues at 1–3, Fed. Trade Comm'n v Sanford Health, No. 17-3783 (8th Cir. 9 January 2018).

39 Brief for Appelees at 2–15, Fed. Trade Comm'n v Sanford Health, No. 17-3783 (8th Cir. 5 March 2018).

40 Complaint at 1, In the Matter of Wilhelm Wilhelmsen, No. 9380 (FTC 22 February 2018).

41 Id at 3-6.

42 Respondent's answer at 3, In the Matter of Wilhelm Wilhelmsen, No. 9380 (FTC 16 March 2018).

43 Id at 1.

44 Id.

45 Temporary Restraining Order, Fed. Trade Comm'n v Wilhemsen, No. 18-cv-00414-TSC (DDC 23 February 2018), ECF No. 7.

46 Motion for Injunction at 16-21, Fed. Trade Comm'n v Wilhemsen, No. 18-cv-00414-TSC (DDC 8 May 2018), ECF No. 49-1.

47 Id at 32-34.

48 Motion to Stay at 1–2, In the Matter of Wilhelm Wilhelmsen, No. 9380 (FTC 15 May 2018).

49 DOJ Complaint at 1–4, United States v Bayer AG, No. 1:18-cv-01241 (DDC 29 May 2018), ECF No. 1.

50 Id at 5–10.

51 Id at 5–15.

52 Id. at 2-3.

53 Press Release, Dep't of Justice, Justice Department Secures Largest Negotiated Merger Divestiture Ever to Preserve Competition Threatened by Bayer's Acquisition of Monsanto (29 May 2018), available at https://www.justice.gov/opa/pr/justice-department-secures-largest-merger-divestiture-ever-preserve-competition-threatened.

54 Id.

55 Id.

56 Proposed Final Judgement at 18–31, United States v Bayer AG, No. 1:18-cv-01241 (DDC 29 May 2018), ECF No. 2-2.

57 Press Release, European Comm'n, Mergers: Commission Clears Bayer's Acquisition of Monsanto, Subject to Conditions (21 March 2018), available at http://europa.eu/rapid/press-release_IP-18-2282_en.htm.

58 Decision and Order at 1-3, In the Matter of Northrop Grumman Corp, No. C-4652 (FTC 5 June 2018).

59 Id.

60 FTC Complaint at 3–5, In the Matter of Northrop Grumman Corp, No. C-4652 (FTC 5 June 2018).

61 Id.

62 Id.

63 Decision and Order, supra note 58, at 1–3 (FTC 5 June 2018).

64 Press Release, 'Fed. Trade Comm'n, FTC Imposes Conditions on Northrop Grumman's Acquisition of Solid Rocket Motor Supplier Orbital ATK, Inc' (5 June 2018), available at https://www.ftc.gov/news-events/press-releases/2018/06/ftc-imposes-conditions-northrop-grummans-acquisition-solid-rocket.

65 DOJ Consent Decree, United States v Danone SA, No. 1:17-cv-00592 (DDC 3 April 2017), ECF No. 2.

66 Press Release, supra note 64.

67 Press Release, 'Dep't of Justice, Justice Department Requires Divestiture of Danone's Stonyfield Farms Business in Order for Danone to Proceed with WhiteWave Acquisition' (3 April 2017), available at https://www.justice.gov/opa/pr/justice-department-requires-divestiture-danone-s-stonyfield-farms-business-order-danone.

68 Id.

69 Id.

70 Final Judgement, United States v Danone SA, No. 1:17-cv-0592 (DDC 13 July 2017), ECF No. 12.

71 News Release, JM Smucker, 'The JM Smucker Company to Acquire the Wesson Oil Brand from Conagra Brands, Inc' (30 March 2017), available at http://www.jmsmucker.com/investor-relations/smuckers-financial-news-releases/article/2277288.

72 Press Release, Fed. Trade Comm'n, 'FTC Challenges Proposed Acquisition of Conagra's Wesson Cooking Oil Brand by Crisco owner, JM Smucker Co' (5 March 2018), available at https://www.ftc.gov/news-events/press-releases/2018/03/ftc-challenges-proposed-acquisition-conagras-wesson-cooking-oil.

73 Complaint at 11–12, In the Matter of The JM Smucker Co, No. 9381 (FTC 5 March 2018).

74 Maria Armental, 'Smucker, Conagra Call Off Wesson Oil Deal After FTC Challenge', Wall Street Journal (6 March 2018), available at https://www.wsj.com/articles/smucker-conagra-call-off-wesson-oil-deal-after-ftc-challenge-1520376297.

75 Joint Motion to Dismiss Complaint, In the Matter of The JM Smucker Co, No. 9381 (FTC 7 March 2018).

76 Press Release, 'Dep't of Justice, Justice Department and North Carolina Sue Carolinas Healthcare System to Eliminate Unlawful Steering Restrictions' (9 June 2016), available at https://www.justice.gov/opa/pr/justice-department-and-north-carolina-sue-carolinas-healthcare-system-eliminate-unlawful.

77 Id.

78 Complaint at 2–4, United States v Charlotte-Mecklenburg Hosp Auth, No. 3:16-cv-00311-RJC-DCK (WDNC, 9 June 2016), ECF No. 1.

79 See Fed. Trade Comm'n & Dep't of Justice Antitrust Div., Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (28 October 2011), available at https://www.justice.gov/sites/default/files/atr/legacy/2011/10/20/276458.pdf.

80 Order at 7-11, United States v Charlotte-Mecklenburg Hosp Auth, No. 3:16-cv-00311-RJC-DCK (WDNC 30 March 2016), ECF No. 46.

81 See United States v American Express Co, 838 F.3.d 179 (2d Cir. 2016).

82 Order, supra note 86, at 15–17.

83 Id.

84 Order Denying Motion to Extend Time, United States v Charlotte-Mecklenburg Hosp Auth, No. 3:16-CV-311-RJC-DCK (WDNC 14 June 2018), ECF No. 83.

85 DOJ Statement of Interest at 2–3, Steve & Sons, Inc v Jeld-Wen, Inc, No. 3:16-cv-00545-REP (ED Va. 6 June 2018), ECF No. 1640.

86 Id. at 1–2.

87 Sergio Chapa, ‘Door Industry Awaits Outcome of Legal Battle Involving Charlotte’s Jeld-Wen’, Charlotte Business Journal (25 May 2018), available at https://www.bizjournals.com/charlotte/news/2018/05/25/door-industry-awaits-outcome-of-legal-battle.html.

88 Id.

89 Memorandum Supporting Motion to Dismiss, supra note 88, at 1–2 (ED Va. 5 August 2018).

90 DOJ Statement of Interest, supra note 91, at 2.

91 Id.

92 Chapa, supra note 93.

93 See DOJ Statement of Interest, supra note 91, at 2–6.

94 Id at 3–6.

95 Id at 6.

96 Plaintiff's Motion for Judgement as a Matter of Law, Steve & Sons v Jeld-Wen, No. 3:16-cv-545-REP (EDVA 15 June 2018), ECF No. 1627.

97 News Release, CVS Health Corp, 'CVS Health to Acquire Aetna; Combination to Provide Consumers with a Better Experience, Reduced Costs and Improved Access to Health Care Experts in Homes and Communities Across the Country' (3 December 2017), available at https://cvshealth.com/newsroom/press-releases/cvs-health-acquire-aetna-combination-provide-consumers-better-experience.

98 Letter to from Diana Moss, President, American Antitrust Inst, to Makan Delrahim, Assistant Attorney Gen., 'Re: Competitive and Consumer Concerns Raised by the CVS-Aetna Merger 1–2' (26 March 2018), available at http://www.antitrustinstitute.org/sites/default/files/CVS-Aetna_AAI%20Letter_3.26.18.pdf.

99 CVS Health Corp, Current Report (Form 8-k) (1 February 2018).

100 US: CVS, Aetna Unscathed Through Congressional Hearing, Competition Policy Int'l (1 March 2018), available at https://www.competitionpolicyinternational.com/us-cvs-aetna-unscathed-through-congressional-hearing.

101 Letter to from Diana Moss to Makan Delrahim, supra note 104.

102 News Release, Cigna, Cigna to Acquire Express Scripts (8 March 2018), available at https://www.cigna.com/assets/docs/about-cigna/Investor%20Relations/cigna-corp-esrx-acquisition-investor-presentation.pdf.

103 Id.

104 Cigna Corp, Current Report (Form 8-k) (23 April 2018).

105 United States v Anthem, Inc, 236 FSupp.3.d 171 (DDC 2017), aff'd, 855 F3d 345 (DC Cir. 2017).

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