United States: Government Investigations
This is an Insight article, written by a selected partner as part of GCR's co-published content. Read more on Insight
US antitrust authorities have remained active in their enforcement efforts and this article addresses several types of governmental investigations by the DOJ and FTC, including litigated merger challenges, mergers abandoned due to enforcement challenges, settled mergers and non-merger enforcement efforts. Litigated merger challenges involve challenges to transactions from the DOJ or FTC that are adjudicated through administrative proceedings and federal courts. Mergers abandoned due to enforcement actions are transactions that are abandoned after the agency investigates or files a complaint. Settled mergers are enforcement actions in which the agency negotiates a settlement with parties to allow the merger to go forward, but often require the divestiture of certain assets. Finally, non-merger enforcement includes actions taken by the FTC or DOJ against anticompetitive behaviour unrelated to a transaction, such as price-fixing.
- Use of structural remedies
- Increased activity from state attorneys general
- Strong FTC dissents
- Emerging use of arbitration
Referenced in this article
- Department of Justice
- Federal Trade Commission
- Clayton Act and Tunney Act
- Federal Trade Commission v RAG-Stiftung
- Federal Trade Commission v Vyera Pharmaceuticals et al
- United States v Sabre
- In re Deutsche Telekom AG Securities Litigation
Federal Trade Commission actions
Litigated merger challenges
On 8 November 2018, Evonik Industries announced that it would acquire PeroxyChem Holding Company in a transaction valued at US$625 million.1 On 2 August 2019, the FTC issued a complaint alleging that the proposed acquisition would reduce competition for the sale and production of hydrogen peroxide in the Pacific Northwest and Southern and Central United States.2 At the same time, the FTC requested a preliminary injunction to block the consummation of the acquisition and preserve the status quo until the administrative proceeding.
The FTC’s complaint alleged that PeroxyChem and Evonik were two of five hydrogen peroxide producers in North America.3 Hydrogen peroxide is most commonly used in making pulp and paper, but is also used in food, packaging, agriculture, chemical synthesis and electronics.4 There are three separate grades of hydrogen peroxide: standard, speciality and pre-electronics. 5
The FTC alleged that the proposed acquisition would increase the likelihood of coordination and significantly reduce head-to-head competition in the market for non-electronics-grade hydrogen peroxide in the Pacific Northwest and the Southern and Central United States. According to the complaint, the acquisition would leave only one producer in the Pacific Northwest and three in Southern and Central United States.6 The FTC alleged a ‘supply side swing theory’ in defining the relevant product market, which focuses on supply substitution as opposed to demand substitution.7 The FTC alleged that the relevant product market here included the three grades of hydrogen peroxide together because a supplier could easily switch production between the three grades.8 The merging parties challenged the market definition as overly broad and inconsistent with commercial practices.9 A more narrow market definition would not in fact show geographical and product overlap.
Judge Timothy Kelly of the US District Court for the District of Columbia disagreed with the FTC’s market definition and denied the FTC’s request for a preliminary injunction on 24 January 2020. In his written opinion issued on 3 February 2020, Judge Kelly found that the FTC’s supply side swing theory was too broad and a ‘substantial departure from the typical way a product market is defined’.10 To establish supply side substitution in market definition, the supply side swinging needs to be nearly universal among suppliers, easy and profitable.11 Judge Kelly found that the FTC failed to meet its burden to prove any of these prongs.12 On 3 February 2020, the parties closed the merger.13 This was the first merger challenge loss for the FTC in five years.14 The FTC did not appeal the decision. 15
Mergers abandoned due to enforcement actions
In February 2019, Aveanna Healthcare announced that it had agreed to acquire the home healthcare division of Maxim Healthcare for a reported US$125 billion. Aveanna and Maxim both provide home health services, with Aveanna focusing on paediatric care.16 In January 2020, after months of investigation by the FTC, Aveanna and Maxim abandoned their proposed merger. 17
The FTC had been investigating the impact of the proposed transaction on the markets for nursing care services and private duty nursing care services.18 In a press release issued by the FTC, Chairman Joseph Simons commented that ‘staff had concerns about the transaction’s potential anticompetitive effects’, but noted that ‘[n]ow that the deal has been abandoned, patients and private duty nurses will continue to benefit from competition between Aveanna and Maxim’.19 The decision to abandon the deal also came after reports had shown lapses in safety standards at Aveanna between 2018 and 2019, including the deaths of several children. 20
On 3 January 2019, Bristol-Myers Squibb Company (BMS) announced that it had agreed to acquire Celgene Corporation for US$74 billion.21 Celgene is a biopharmaceutical company specialising in development of therapies for the treatment of cancer and inflammatory diseases.22 On 15 November 2020, the FTC approved the acquisition subject to the divestiture of Celgene’s drug, Otezla. 23
In its complaint filed with the consent decree, the FTC argued that the acquisition would ‘eliminat[e] future competition between BMS and Celgene in the development and sale of oral products to treat moderate to severe psoriasis’.24 Celgene owned Otezla, an oral treatment for moderate to severe psoriasis. Before the acquisition, BMS had been developing a new form of oral treatment for this form of psoriasis. 25
In their settlement with the FTC, the parties agreed to the divestiture of Celgene’s Otezla to Amgen, Inc for US$13.4 billion.26 The settlement was approved by a 3:2 decision. The two Democratic commissioners wrote forceful dissents citing broader concerns with increasing drug prices and a history of anticompetitive practices in the pharmaceutical industry.27 Both commissioners challenged the analysis used in these types of cases. Commissioner Chopra specifically raised concerns that the FTC’s desire to settle merger cases through divestitures has allowed large mergers such as the transaction at issue to go forward. Commissioner Chopra warned that when enforcers ‘wear blindfolds or cling to the status quo, they cannot assume that the public is protected’.28 Similarly, Commissioner Slaughter challenged the methodology used, stating, ‘I am concerned that [the current approach] does not fully capture all of the competitive consequences of these transactions’.29 Instead, the Commission should analyse whether proposed mergers would exacerbate anticompetitive conduct or hinder innovation more broadly.30 After a period of public comment, the consent decree was finalised in January 2020. 31
On 25 June 2019, AbbVie Inc, the seventh-largest pharmaceutical company globally, agreed to acquire Allergan plc, the 20th-largest pharmaceutical company globally, for US$63 billion.32 On 5 May 2020, the FTC approved a consent decree by a vote of 3:2, allowing the acquisition to proceed, subject to divestiture of several assets.
The FTC was concerned that the proposed acquisition would harm consumers for the treatment of exocrine pancreatic insufficiency (EPI). The acquisition, they alleged, would also eliminate direct competition for the development and sale of IL-23 inhibitor drugs, which treat Crohn’s disease and ulcerative colitis. 33
Under the consent decree, the parties agreed to divest to Nestlé Allergan’s two EPI drugs, Zenpep and Viokace. Additionally, the FTC also required the transfer of Allergan’s rights and assets related to brazikumab, a IL-23 inhibitor, to AstraZeneca, the drug’s original developer, by terminating the AstraZeneca licence to Allergan.34 Commissioners Chopra and Slaughter again dissented in this case.35 Commissioner Chopra voiced concerns that the required divestitures would not properly cure the anticompetitive effects of the proposed acquisition. He noted that, for the first time, the FTC had ordered a divestiture in a pharmaceutical merger to a company that did not offer prescription drugs, Nestlé. In addition, he argued that transferring the rights to the brazikumab pipeline project back to AstraZeneca created a windfall for AstraZeneca, which may not have a long-term commitment to develop this drug. More generally, the Commissioners argued that divestiture settlements for pharmaceutical mergers are often inadequate because there are barriers to new entrants that are sold an asset, and the companies receiving the divested assets may not be able to develop the assets to compete with the merging companies. On 8 May 2020, the parties closed the transaction. 36
Non-merger enforcement efforts
Vyera Pharmaceuticals, LLC
On 27 January 2020, the FTC filed a complaint in federal district court against Vyera Pharmaceuticals, LLC alleging that the company employed an anticompetitive scheme to preserve a monopoly on its drug, Daraprim. Daraprim treats toxoplasmosis, a parasitic infection that can be fatal for immunocompromised individuals.
According to the complaint, Vyera acquired the drug and immediately increased the price from US$17.50 a tablet to US$750. Further, Vyera restricted the entry of generics by forming a complex set of contractual restrictions that prevented the resale of Daraprim to generic companies. According to the amended complaint, Vyera also blocked access to the active ingredient in the drug and restricted the distribution of Daraprim’s sales data to third parties. 37
The complaint was first filed jointly with the New York State Attorney General. In April 2020, six more states joined the amended complaint.38 Martin Shkreli, Kevin Mulleady and Phoenixus AG, Vyera’s parent company, were also listed as defendants.39 The defendants have filed motions to dismiss and motions to stay discovery while the motion to dismiss is pending.
Tech company acquisitions
On 11 February 2020, the FTC issued a special order under section 6(b) of the Federal Trade Commission Act to authorise the Commission to study the acquisitions performed by technology companies that fall below the Hart-Scott-Rodino (HSR) Act reporting requirements.40 Under this order, the FTC has required Alphabet Inc, Apple Inc, Facebook Inc and Microsoft Corporation to provide information on transactions consummated between 1 January 2010 and 31 December 2019. FTC Chairman Joe Simons stated, ‘This initiative will enable the Commission to take a closer look at acquisitions in this important sector, and also to evaluate whether federal agencies are getting adequate notice of transactions that might harm competition.’41 The study would provide the FTC with information regarding acquisitions that fall below the monetary threshold for HSR reporting, including the acquisitions of smaller start-ups. This will allow the FTC to study the impact of M&A activity on innovation and competition in the technology sector. 42
Litigated merger challenge
Sabre Corporation announced plans in November 2018 to acquire Farelogix Company for US$360 million.43 Both companies provide booking services to airlines, which allows airlines to sell tickets to customers through traditional and online travel agencies. 44
In August 2019, the DOJ filed a civil antitrust lawsuit to enjoin the acquisition. The DOJ’s complaint alleged that Sabre was the largest global distribution system in the United States and a dominant provider of booking services, and that Farelogix, an innovative technology firm, offered an alternative booking services solution, Open Connect, that allows airlines to bypass the global distribution system offered by companies such as Sabre to connect directly to travel agencies.45 The DOJ accused Sabre of trying to eliminate a disruptive newcomer to the market through this acquisition.46 Following an eight-day bench trial, Judge Leonard P Stark in the US District Court for the District of Delaware denied the DOJ’s motion in April 2020.47 The Court concluded that Sabre and Farelogix do not compete in a relevant market because Sabre is a two-sided platform that interacts with both airlines and travel agencies while Farelogix is a one-sided platform that only interacts with airlines.48 Two days after this decision, however, the UK’s Competition and Markets Authority blocked the deal, finding it to be anticompetitive under UK law.49 Shortly thereafter, the parties announced the termination of their merger agreement. 50
In December 2017, CVS Health announced that it would acquire Aetna, Inc in a transaction valued at US$69 billion.51 The DOJ approved the transaction in October 2018, subject to Aetna’s divestiture of its Medicare Part D prescription drug plan for individuals.52 The consent decree also required that Aetna assist WellCare, the divestiture buyer, with operating plans during the transition period and transferring affected customers. The parties completed the transaction in November 2018. 53
Several months after the close of the transaction, Judge Richard J Leon of the DC Circuit scheduled a highly unusual multi-day hearing to review the DOJ’s settlement with CVS.54 In an unprecedented move, Judge Leon allowed witness testimony from six witnesses: three critics and three proponents of the merger. He did not allow any cross-examination of the witnesses, and he rejected a DOJ request to present its own witnesses. CVS unsuccessfully moved to exclude testimony from multiple witnesses from the proceedings and argued that no judge had ever before allowed witness testimony in a Tunney Act hearing.55 Regarding the hearing, Judge Leon stressed that, ‘this hearing is not a trial . . . [it] is merely an opportunity for the parties and the amici to provide the Court with whatever additional information and analysis they believe will aid the Court in determining whether the Government’s proposed final judgment is in the public interest’.56 The hearing commenced on 4 June 2019 and lasted two days. On 4 September 2019, Judge Leon approved the DOJ’s proposed settlement and determined that it was in the public interest. 57
In October 2019, Raytheon Company and United Technologies Corporation (UTC) announced an all-stock merger of equals to combine UTC’s aerospace businesses with Raytheon.58 On 26 March 2020, the DOJ announced that it had entered into a consent decree that required the parties to divest Raytheon’s military airborne radios business, UTC’s military global positioning systems business and UTC’s large space-based optical systems business.59 The DOJ alleged that without these divestitures, the merger would eliminate competition between the two main suppliers of military airborne radios and GPS systems to the Department of Defense.60 The parties completed the transaction on 3 April 2020. 61
T-Mobile and Sprint Corporation, the third and fourth-largest national wireless carriers, announced in April 2018 that they had reached an agreement to merge in an all-stock deal valued at approximately US$27 billion.62 In an unusual divergence, 10 states and the District of Columbia sued to block the merger in June 2019 even though the DOJ was reportedly negotiating a settlement with the parties that would allow the transaction to proceed.63 The states emphasised the harm that would be caused by combining two of the country’s four nationwide wireless carriers in the form of depriving consumers of the benefits of competition and driving up prices for mobile phone services. 64
A month later, in July 2019, the DOJ approved the merger, subject to a settlement agreement that required T-Mobile and Sprint to divest assets to Dish Network Corporation, a satellite television provider, to facilitate its entry into the market as a fourth carrier.65 T-Mobile and Sprint agreed to divest Sprint’s prepaid businesses, including Boost Mobile, Virgin Mobile and Sprint prepaid brands, as well as transfer low-band spectrum to Dish to help it build its network.66 The agreement also enabled Dish to buy thousands of decommissioned cell sites and retail stores from T-Mobile and Sprint, and it required T-Mobile to provide Dish with access to the T-Mobile network for seven years while Dish builds its own 5G network. 67
In the action brought by the states, Judge Victor Marrero of the US District Court for the Southern District of New York was persuaded that Dish’s entry into the market would be a sufficient remedy. In February 2020, after a two-week bench trial, Judge Marrero held that the states failed to satisfy their burden to establish that the proposed merger would substantially lessen competition.68 On 1 April 2020, Judge Timothy J Kelly of the US District Court for the District of Columbia entered final judgment approving the DOJ’s settlement, and the parties closed the transaction. 69
In July 2018, Novelis Inc announced an agreement to acquire aluminium parts maker Aleris Corporation in a deal valued at US$2.6 billion.70 Novelis supplies aluminium sheet and foil products, and Aleris was a downstream producer of aluminium rolled products.
On 4 September 2019, the DOJ filed a civil antitrust lawsuit in the US District Court for the Northern District of Ohio seeking to block the transaction.71 The DOJ argued that the merger as originally structured was anticompetitive because auto makers benefited from competition between Novelis and Aleris in the sale of aluminium auto body sheet used in cars.72 Following fact discovery, the parties referred the matter to binding arbitration to resolve the specific issue of product market definition.73 The defendants argued that the relevant market should include aluminium and steel auto body sheet, in which case the parties to the merger would be two of a large number of competitors, while the DOJ argued that the relevant market should just include aluminium, making the parties two of only four suppliers in North America with control of 60 per cent of production capacity.74 After a 10-day arbitration hearing, the arbitrator, a former FTC official, ruled for the DOJ, holding that aluminium auto body sheet constituted the relevant product market.75 As a result, Novelis agreed, pursuant to a consent decree filed by the DOJ on 12 May 2020, to divest Aleris’s aluminium auto body sheet operations in North America, as well as reimburse the DOJ for fees and costs incurred through arbitration. 76
This marked the first time the Antitrust Division used its authority under the Administrative Dispute Resolution Act of 199677 to resolve a matter through arbitration.78 The DOJ praised the increased efficiency and clarity for all parties and suggested it could be a model for future enforcement actions. 79
Non-merger enforcement efforts
Generic pharmaceutical companies
In March 2020, the DOJ charged Sandoz Inc, a generic pharmaceutical company, with participating in four criminal antitrust conspiracies to allocate customers, rig bids and fix prices for generic drugs.80 The DOJ simultaneously announced a deferred prosecution agreement to resolve the charges against Sandoz.81 Sandoz agreed to pay a US$195 million criminal penalty, which the DOJ claimed was the largest for a domestic antitrust case.82 Sandoz was the third company to be charged in the DOJ’s ongoing investigation into the generic pharmaceutical industry.83 In May 2020, the DOJ charged a fourth generic pharmaceutical company, Apotex Corp, with fixing the price of the generic drug pravastatin.84 Apotex agreed to pay a US$24.1 million criminal penalty and entered a deferred prosecution agreement with the DOJ. The DOJ has stated that its investigation into price-fixing and other anticompetitive practices in the generic pharmaceutical industry is ongoing. 85
Google and Apple
In July 2019, the DOJ launched a major antitrust review of large technology companies to determine whether they are engaging in anticompetitive practices.86 Previously, reports had suggested that the FTC and DOJ had met and agreed to divide jurisdiction in this area, giving the FTC authority over potential antitrust investigations into Facebook and Amazon and the DOJ authority over Google and Apple. 87
Google appears to be facing multiple antitrust investigations. On 9 September 2019, the Attorney General of Texas announced that Texas was leading 50 state attorneys general in a multi-state investigation of Google over its control of online advertising and domination of search traffic.88 It has been publicly reported that the DOJ appears to be completing its own antitrust investigation of Google, and that it appears likely that the DOJ will bring an antitrust case against Google by the end of summer 2020.89 The DOJ requested information by the end of June 2020 from companies with data that could be used to support a complaint against Google.90 On 26 June 2020, the DOJ and a group of state attorneys general met to discuss the next steps in bringing a case against the tech giant. 91
Like Google, Apple also appears to be facing an antitrust probe. In June 2020, the DOJ and a coalition of state attorneys general took steps towards initiating an antitrust investigation against Apple.92 According to individuals involved in the discussions, the DOJ and the attorneys general have spoken to companies that are unhappy with Apple’s control of its App Store.93 Developers claim that Apple inconsistently applies its App Store rules, particularly for apps made by competitors, and this leads to higher prices and fewer choices for customers.94 Apple is also facing twin probes in Europe, as the European Commission launched two antitrust investigations on 16 June 2020 over allegations of anticompetitive behaviour in Apple’s operation of its App Store and use of Apple Pay. 95
The DOJ and FTC have issued joint statements addressing the spread of covid-19 and its impact on antitrust enforcement. In a March 2020 statement, the agencies recognised that some businesses may need to act immediately and collaboratively to address the rapidly evolving public health emergency.96 They outlined some collaborative activities, such as sharing technical know-how, developing suggested practice parameters and entering joint purchasing arrangements to reduce transaction costs, that they would not challenge absent extraordinary circumstances.97 The FTC and DOJ also began accepting electronic filings of HSR notifications and announced an expedited process for issuing business review letters during the pandemic.98 In a joint statement in April 2020, the FTC and DOJ cautioned that they will be on high alert for anticompetitive conduct in the labour market, such as agreements to fix wages, lower salaries or reduce hours. 99
*The author would like to thank Sarah M Levine, Julie Moroney and Lauren Reisig, who were summer associates in Cravath, Swaine & Moore’s litigation department, for their assistance with this article.
1 Press Release, Evonik, Evonik acquires PeroxyChem for US$625 million (8 Nov 2018), https://corporate.evonik.com/en/evonik-acquires-peroxychem-for-us625-million-106219.html.
2 See generally Complaint, In re RAG-Stifting, et al., No. 9834 (FTC 2 Aug 2019), www.ftc.gov/system/files/documents/cases/d09384_evonik-peroxychem_part_iii_complaint_8-2-19.pdf.
3 id. at 2.
5 id. at 5.
6 id. at 2.
7 Bryan Koenig, ‘Market “Oversimplification” Doomed FTC Merger Challenge’, Law360 (3 Feb 2020), www.law360.com/articles/1240281/market-oversimplification-doomed-ftc-merger-challenge.
8 FTC v RAG-Stiftung et al., 436 F. Supp. 3d 278, 292 (D.D.C. 2020).
11 id. at 294.
12 id. at 294–299.
13 Bryan Koenig, ‘FTC Out of Time On Chem Merger Loss’, Law360 (26 Mar 2020), www.law360.com/articles/1257345/ftc-out-of-time-on-chem-merger-loss.
14 Victoria Graham, ‘Novel Theory in Evonik, PeroxyChem Sinks Merger win Streak’, Bloomberg Law (10 Feb 2020), https://news.bloomberglaw.com/mergers-and-antitrust/novel-ftc-theory-in-evonik-peroxychem-sinks-merger-win-streak.
15 Bryan Koenig, footnote 13.
16 Anne Cullen, ‘Aveanna Healthcare Drops $1.25B Rival Buy Amid FTC Probe’, Law360 (30 Jan 2020), www.law360.com/articles/1239370/aveanna-healthcare-drops-1-25b-rival-buy-amid-ftc-probe.
18 Press Release, FTC, Statement of the FTC Chairman Regarding Announcement that Aveanna Healthcare and Maxim Healthcare Services have Terminated Their Acquisition Agreement (30 Jan 2020), www.ftc.gov/news-events/press-releases/2020/01/statement-ftc-chairman-regarding-announcement-aveanna-healthcare.
20 Sabrina Willmer, ‘When Wall Street Took Over This Nursing Company, Profits Grew and Patients Suffered’, Bloomberg (22 Oct 2019), www.bloomberg.com/news/features/2019-10-22/death-and-deals-sick-children-suffer-private-equity-profits?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosvitals&stream=top.
21 Press Release, Bristol-Myers Squibb, Bristol-Myers Squibb to Acquire Celgene to Create a Premier Innovative Biopharma Company (3 Jan 2019), https://news.bms.com/press-release/corporatefinancial-news/bristol-myers-squibb-acquire-celgene-create-premier-innovative.
23 Press Release, FTC, FTC Requires Bristol-Myers Squibb Company and Celgene Corporation to Divest Psoriasis Drug Otezla as a Condition of Acquisition (15 Nov 2019), www.ftc.gov/news-events/press-releases/2019/11/ftc-requires-bristol-myers-squibb-company-celgene-corporation.
24 Complaint at 3, In re Bristol-Myers Squibb Co. & Celgene Co., No. C-4690, (FTC 15 Nov 2019), www.ftc.gov/system/files/documents/cases/bms-celgene_complaint.pdf.
25 Press Release, FTC, footnote 23.
27 See FTC, Dissenting Statement of Commissioner Rebecca Kelly Slaughter (15 Nov 2019), www.ftc.gov/system/files/documents/public_statements/1554283/17_-_final_rks_bms-celgene_statement.pdf; FTC, Dissenting Statement of Commissioner Rohit Chopra (15 Nov 2019), www.ftc.gov/system/files/documents/public_statements/1554293/dissenting_statement_of_commissioner_chopra_in_the_matter_of_bristol-myers-celgene_1910061.pdf.
28 FTC, Dissenting Statement of Commissioner Rohit Chopra, footnote 27.
29 FTC, Dissenting Statement of Commissioner Rebecca Kelly Slaughter, footnote 27; FTC, Dissenting Statement of Commissioner Rohit Chopra, footnote 27.
31 Press Release, FTC, FTC Approves Final Order Requiring Bristol-Myers Squibb Company and Celgene Corporation to Divest Psoriasis Drug Otezla as a Condition of Acquisition (13 Jan 2020), www.ftc.gov/news-events/press-releases/2020/01/ftc-approves-final-order-requiring-bristol-myers-squibb-company.
32 Press Release, FTC, FTC Imposes Conditions on AbbVie Inc.’s Acquisition of Allergan plc (5 May 2020), www.ftc.gov/news-events/press-releases/2020/05/ftc-imposes-conditions-abbvie-incs-acquisition-allergan-plc.
33 Complaint at 3, In re AbbVie Inc. & Allergan PLC, No. C-4713 (FTC 5 May 2020), www.ftc.gov/system/files/documents/cases/191_0169_abbvie_and_allergan_-_complaint_0.pdf.
34 Press Release, FTC, footnote 32.
35 See FTC, Dissenting Statement of Commissioner Rohit Chopra (5 May 2020), www.ftc.gov/system/files/documents/public_statements/1574583/191-0169_dissenting_statement_of_commissioner_rohit_chopra_in_the_matter_of_abbvie-allergan_redacted.pdf; FTC, Dissenting Statement of Commissioner Rebecca Kelly Slaughter (5 May 2020), www.ftc.gov/system/files/documents/public_statements/1574577/191_0169_dissenting_statement_of_commissioner_rebecca_kelly_slaughter_in_the_matter_of_abbvie_and_0.pdf.
36 Press Release, AbbVie, AbbVie Completes Transformative Acquisition of Allergan (8 May 2020), https://news.abbvie.com/news/press-releases/abbvie-completes-transformative-acquisition-allergan.htm.
37 Redacted Amended Complaint at 3–5, Fed. Trade Comm’n v Vyera Pharmaceuticals, LLC et al., No. 1:20-cv-00706-DLV (S.D.N.Y. 14 Apr 2020), www.ftc.gov/system/files/documents/cases/161_0001_vyera_amended_complaint.pdf.
38 Press Release, FTC, Six More States Join FTC and NY Attorney General’s Case Against Vyera Pharmaceuticals, Martin Shkreli, and Other Defendants (14 Apr 2020), www.ftc.gov/news-events/press-releases/2020/04/six-more-states-join-ftc-ny-attorney-generals-case-against-vyera.
39 Press Release, FTC, FTC and NY Attorney General Charge Vyera Pharmaceuticals, Martin Shkreli, and Other Defendants with Anticompetitive Scheme to Protect a List-Price Increase of More Than 4,000 Percent for Life-Saving Drug Daraprim (27 Jan 2020), www.ftc.gov/news-events/press-releases/2020/01/ftc-ny-attorney-general-charge-vyera-pharmaceuticals-martin.
40 Press Release, FTC, FTC to Examine Past Acquisitions by Large Technology Companies (11 Feb 2020), www.ftc.gov/news-events/press-releases/2020/02/ftc-examine-past-acquisitions-large-technology-companies.
42 Caitlin Chin, ‘With a new 6(b) study, the FTC reassesses antitrust enforcement’, Brookings (25 Mar 2020), www.brookings.edu/blog/techtank/2020/03/25/with-a-new-6b-study-the-ftc-reassesses-antitrust-enforcement/.
43 Press Release, Sabre, Sabre enters agreement to acquire Farelogix (14 Nov 2018), www.sabre.com/insights/releases/sabre-enters-agreement-to-acquire-farelogix-expanding-its-airline-technology-portfolio-and-accelerating-its-strategy-to-deliver-next-generation-retailing-distribution-and-fulfillment-capabilities/.
44 Press Release, DOJ, Justice Department Sues to Block Sabre’s Acquisition of Farelogix (20 Aug 2019), www.justice.gov/opa/pr/justice-department-sues-block-sabres-acquisition-farelogix.
45 Complaint at 1, United States v Sabre Corp., No. 99-MC-09999 (D. Delaware 20 Aug 2019), www.justice.gov/opa/press-release/file/1196816/download.
47 United States v Sabre Corp., No. CV 19-1548-LPS, 2020 WL 1855433, at *1 (D. Del. 7 Apr 2020).
48 id. at *32.
49 Press Release, Competition and Markets Authority, CMA blocks airline booking merger (9 Apr 2020), www.gov.uk/government/news/cma-blocks-airline-booking-merger.
50 Press Release, Sabre, Sabre Corporation Issues Statement on its Merger Agreement with Farelogix (1 May 2020), www.sabre.com/insights/releases/sabre-corporation-issues-statement-on-its-merger-agreement-with-farelogix/.
51 Press Release, CVS, CVS Health to Acquire Aetna (3 Dec 2017), available at https://cvshealth.com/newsroom/press-releases/cvs-health-acquire-aetna-combination-provide-consumers-better-experience.
52 Press Release, DOJ, Justice Department Requires CVS and Aetna to Divest Aetna’s Medicare Individual Part D Prescription Drug Plan Business to Proceed with Merger (10 Oct 2018), www.justice.gov/opa/pr/justice-department-requires-cvs-and-aetna-divest-aetna-s-medicare-individual-part-d.
53 Press Release, Aetna, CVS Health Completes Acquisition of Aetna, Marking the Start of Transforming the Consumer Health Experience (28 Nov 2018), https://cvshealth.com/news-and-insights/press-releases/cvs-health-completes-acquisition-of-aetna-marking-the-start-of.
54 Brent Kendall, ‘Federal Judge to Hold Hearings on Decision to Allow CVS-Aetna Merger’, Wall Street Journal (5 Apr 2019), www.wsj.com/articles/judge-to-allow-witness-testimony-on-cvs-aetna-merger-11554494817.
55 CVS’s Motion to Exclude at 9, United States v CVS Health Corporation, No. 18-CV-2340 (D.D.C. 13 May 2019), ECF No. 81.
56 Memorandum Order at 3, United States v CVS Health Corporation, No. 18-CV-2340 (D.D.C. 13 May 2019), ECF No. 90.
57 United States v CVS Health Corp., 407 F. Supp. 3d 45, 48 (D.D.C. 2019), judgment entered, No. CV 18-2340, 2019 WL 4793060 (D.D.C. 4 Sept 2019).
58 Press Release, Raytheon, Shareowners Approve Raytheon and United Technologies Merger of Equals (11 Oct 2019), investor.raytheon.com/news-releases/news-release-details/shareowners-approve-raytheon-and-united-technologies-merger.
59 Proposed Final Judgment at 14, United States v United Technologies Corp., No. 20-CV-00824 (D.D.C. 26 Mar 2020), www.justice.gov/opa/press-release/file/1262866/download; see also Press Release, DOJ, Justice Department Requires Divestitures in Merger Between UTC and Raytheon to Address Vertical and Horizontal Antitrust Concerns (26 Mar 2020), www.justice.gov/opa/pr/justice-department-requires-divestitures-merger-between-utc-and-raytheon-address-vertical-and.
60 Press Release, DOJ, footnote 59.
61 Press Release, Raytheon, United Technologies and Raytheon Complete Merger of Equals Transaction (3 Apr 2020), www.rtx.com/en/News/2020/04/03/United-Technologies-and-Raytheon-Complete-Merger-of-Equals-Transaction.
62 Press Release, T-Mobile, T-Mobile and Sprint to Combine, Accelerating Innovation & Increasing Competition (29 Apr 2018), www.t-mobile.com/news/press/5gforall; Nabila Ahmed and Scott Moritz, ‘T-Mobile to Buy Sprint for $26.5 Billion in Bet on Networks’, Bloomberg (29 Apr 2018), www.bloomberg.com/news/articles/2018-04-29/sprint-t-mobile-in-26-5-billion-deal-to-take-on-at-t-verizon.
63 Press Release, New York State Office of the Attorney General, Attorney General James Moves to Block T-Mobile and Sprint Megamerger (11 June 2019), https://ag.ny.gov/press-release/2019/new-york-attorney-general-james-moves-block-t-mobile-and-sprint-megamerger-0.
68 New York v Deutsche Telekom AG, No. 19 CIV. 5434 (VM), 2020 WL 635499, at *52 (S.D.N.Y. 11 Feb 2020).
69 United States v Deutsche Telekom AG, No. 19-CV-2232, 2020 WL 2481785, at *17 (D.D.C. 1 Apr 2020); see also Press Release, T-Mobile, T-Mobile Completes Merger with Sprint to Create the New T-Mobile (1 Apr 2020), www.t-mobile.com/news/un-carrier/t-mobile-sprint-one-company.
70 Press Release, Novelis, Novelis to Acquire Downstream Aluminum Producer Aleris (26 July 2018), http://investors.novelis.com/2018-07-26-Novelis-to-Acquire-Downstream-Aluminum-Producer-Aleris.
71 Complaint at 1, United States v Novelis, Inc., No. 19-CV-02033 (N.D. Ohio 4 Sept 2019), www.justice.gov/atr/case-document/file/1199461/download.
72 id. at 2.
73 Press Release, DOJ, Justice Department Wins Historic Arbitration of a Merger Dispute (9 Mar 2020), www.justice.gov/opa/pr/justice-department-wins-historic-arbitration-merger-dispute.
74 Press Release, Novelis, Novelis Receives Arbitration Decision (9 Mar 2020), http://investors.novelis.com/2020-03-09-Novelis-Receives-Arbitration-Decision; Complaint at 2, United States v Novelis, Inc., No. 19-CV-02033 (N.D. Ohio 4 Sept 2019), www.justice.gov/atr/case-document/file/1199461/download.
75 Press Release, DOJ, footnote 73.
77 5 U.S.C. § 571 et seq.
79 Antitrust Division Update 2020, DOJ (23 June 2020), www.justice.gov/atr/division-operations/antitrust-division-update-2020/new-approaches-new-decade.
80 Press Release, DOJ, Major Generic Pharmaceutical Company Admits to Antitrust Crimes (2 Mar 2020), www.justice.gov/opa/pr/major-generic-pharmaceutical-company-admits-antitrust-crimes.
84 Press Release, DOJ, Generic Pharmaceutical Company Admits to Fixing Price of Widely Used Cholesterol Medication (7 May 2020), www.justice.gov/opa/pr/generic-pharmaceutical-company-admits-fixing-price-widely-used-cholesterol-medication.
86 Press Release, DOJ, Justice Department Reviewing the Practices of Market-Leading Online Platforms (23 July 2019), www.justice.gov/opa/pr/justice-department-reviewing-practices-market-leading-online-platforms.
87 Cecilia Kang, David Streitfeld and Annie Karni, ‘Antitrust Troubles Snowball for Tech Giants as Lawmakers Join In’, New York Times (3 June 2019), www.nytimes.com/2019/06/03/technology/facebook-ftc-antitrust.html.
88 Press Release, Attorney General of Texas, Attorney General Paxton Leads 50 Attorneys General in Google Multistate Bipartisan Antitrust Investigation (9 Sept 2019), www.texasattorneygeneral.gov/news/releases/attorney-general-paxton-leads-50-attorneys-general-google-multistate-bipartisan-antitrust.
89 Diane Bartz and Paresh Dave, ‘U.S. and states’ Google antitrust probe nears finish line’, Reuters (26 June 2020), www.reuters.com/article/us-tech-antitrust-google-focus/u-s-and-states-google-antitrust-probe-nears-finish-line-idUSKBN23X1D7; Brent Kendall and John D McKinnon, ‘Justice Department, State Attorneys General Likely to Bring Antitrust Lawsuits Against Google’, Wall Street Journal (15 May 2020), www.wsj.com/articles/justice-department-state-attorneys-general-likely-to-bring-antitrust-lawsuits-against-google-11589573622.
91 Brent Kendall and John D McKinnon, ‘Justice Department, State Attorneys General to Confer on Google Antitrust Challenge’, Wall Street Journal (23 June 2020), www.wsj.com/articles/justice-department-state-attorneys-general-to-confer-on-google-antitrust-challenge-11592937476.
92 Leah Nylen, ‘Apple’s easy ride from U.S. authorities may be over’, Politico (24 June 2020), www.politico.com/news/2020/06/24/justice-department-anti-trust-apple-337120.
95 Press Release, European Commission, Antitrust: Commission opens investigations into Apple’s App Store rules (16 June 2020), https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1073; see also Press Release, European Commission, Antitrust: Commission opens investigation into Apple practices regarding Apple Pay (16 June 2020), https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1075.
96 DOJ, Joint Antitrust Statement Regarding COVID-19 (Mar 2020), www.justice.gov/atr/joint-antitrust-statement-regarding-covid-19.
98 Press Release, DOJ, Justice Department Announces Antitrust Civil Process Changes for Pendency of COVID-19 Event (17 Mar 2020), www.justice.gov/opa/pr/justice-department-announces-antitrust-civil-process-changes-pendency-covid-19-event.
99 Press Release, DOJ, Justice Department and Federal Trade Commission Jointly Issue Statement on COVID-19 and Competition in U.S. Labor Markets (13 Apr 2020), www.justice.gov/opa/pr/justice-department-and-federal-trade-commission-jointly-issue-statement-covid-19-and.