Biden administration enforcement policy creates challenging environment for US mergers

In summary

This article discusses the competition-related merger review process in the United States. It describes the institutions involved in merger review, primarily the Antitrust Division of the US Department of Justice (DOJ) and the Federal Trade Commission (FTC). It outlines the legal framework these entities apply when investigating mergers, traces the life cycle of a typical merger review and discusses recent notable merger review enforcement under the Biden administration.

Discussion points

• The institutions involved in merger review: DOJ, FTC and state attorneys general
• Substantive law: Clayton Act Section 7
• In-depth merger reviews
• Merger enforcement under the Biden administration

Referenced in this article

• Clayton Act Section 7
• Hart-Scott-Rodino Antitrust Improvements Act
• UnitedHealth/Change Health
• Assa Abloy/Spectrum
• Illumina/Grail
• Microsoft/Activision
• Booz Allen Hamilton/EverWatch

The statutory framework for suspensory merger review in the United States comes from the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act).^[1] Under the HSR Act, parties engaging in transactions that exceed certain annually adjusted monetary thresholds^[2] are required to notify both the Department of Justice (DOJ) and the Federal Trade Commission (FTC)^[3] (collectively, the agencies) at least 30 days prior to closing and pay a fee based on the size of the transaction.^[4] Failure to file can result in penalties in excess of US$50,000 per day.^[5] At the end of the 30 days, known as the ‘waiting period’, the parties are free to close unless: (i) the parties ‘pull and refile’ to provide the agencies a fresh 30 days to review the transaction;^[6] or (ii) either of the agencies ‘require[s] the submission of additional information or documentary material relevant to the proposed acquisition’^[7] (commonly called a second request). If a second request is issued, the parties cannot close until 30 days after substantially complying.^[8] The time it takes to comply with a second request depends on a number of factors, but it is typical for parties to take between two and a half and nine months to comply with a second request.

At the end of the merger review process, there are three basic outcomes:

• the reviewing agency can close its investigation;
• the reviewing agency and the merging parties can settle to resolve any competitive concerns posed by the transaction, such as by divesting certain facilities; or
• the reviewing agency can sue to block the transaction.

Because it is based on the size of a transaction, rather than on a transaction’s competitive significance, the HSR filing requirement inadvertently sweeps in many transactions that pose no competitive concerns. Prior to January 2021, the agencies would often grant, upon request, ‘early termination’ for competitively insignificant transactions, allowing the parties to close prior to the expiry of the 30-day waiting period. Shortly after President Biden’s inauguration, however, the agencies ‘paused’ early termination^[9] and, at the time of writing, show no sign of resuming.

On 27 June 2023, the agencies proposed extensive changes to the HSR form that, if adopted as drafted, would dramatically increase the time and cost of notifying a merger by requiring the submission of substantially more information.^[10] This information may include narrative responses of the kind traditionally reserved for second requests and may pertain to new areas such as labour, prior transactions, pre-revenue products, and officers and directors.^[11] If adopted, this would be the first time the agencies would have made meaningful changes to the HSR form since it was established. The agencies are accepting public comments until 27 September 2023 and thereafter will consider the feedback and finalise new rules.

Institutions

Structure and organisation

DOJ

Two agencies share jurisdiction over merger review: the DOJ and the FTC. The DOJ is part of the executive branch of the federal government, and its leader, the Attorney General (AG), is a member of the president’s cabinet. The Antitrust Division of the DOJ is led by a presidentially appointed, Senate-confirmed assistant AG (AAG).^[12] The AAG has unilateral decision-making authority over the Antitrust Division, but reports to the AG. The AAG is assisted by several politically appointed deputy AAGs, two or three of whom generally oversee civil matters, including merger review, merger litigation and international relations. At the career-staff level, the Antitrust Division of the DOJ has six civil litigating sections that conduct merger review investigations for specific commodities:

• healthcare and consumer products;
• defence, industrials and aerospace;
• financial services, fintech and banking;
• media, entertainment and communications;
• transportation, energy and agriculture; and
• technology and digital platforms.

Each section is headed by a chief and two assistant chiefs, and staffed, at least historically, by approximately 20 to 25 trial attorneys and 12 paralegals. DOJ leadership has significant flexibility in staffing matters, and, if a particular section is busy, it is not uncommon for merger investigations to be assigned to a different section. Personnel are also frequently detailed to different sections if there is a particular need. On 16 November 2021, Jonathan Kanter was confirmed by the US Senate to serve as AAG of the Antitrust Division of the DOJ.^[13]

FTC

The FTC is a federal administrative agency headed by five commissioners, collectively known as the Commission. Each commissioner is nominated by the president and confirmed by the Senate. No more than three commissioners may be members of the same political party. The president designates one commissioner as chair of the Commission, who sets the agency’s agenda, appoints key staff and oversees the day-to-day work of the FTC, with certain key actions subject to vote by the whole Commission. The FTC is organised into three divisions known as bureaus: the Bureau of Competition, the Bureau of Consumer Protection and the Bureau of Economics. The bureaus primarily responsible for reviewing mergers are the Bureau of Competition and the Bureau of Economics. The Bureau of Economics works with the Bureau of Competition to evaluate mergers and provides independent, economic analysis of deals for review and consideration by both the Bureau of Competition and the Commission. Within the Bureau of Competition are four merger-specific subdivisions, colloquially known as ‘shops’, which typically review transactions according to the following criteria:

• Mergers I: reviews transactions in healthcare-related industries, including branded and generic pharmaceutical manufacturing and distribution, medical devices and consumer health products. It also handles matters involving defence, scientific, industrial, technology and consumer products;
• Mergers II: reviews transactions in a wide variety of industries, including coal mines, chemicals, entertainment and computer hardware and software;
• Mergers III: reviews transactions in a diverse set of industries from razors and online real estate listing services to title insurance, rooftop aerial measurement products, oil and gas, and retail fuel stations, terminals and pipelines; and
• Mergers IV: reviews transactions involving hospitals, physicians, office supply distribution, food distribution, supermarkets, specialist retail stores, consumer goods and casinos.

Each merger section is headed by an assistant director and two deputy assistant directors, and is staffed, at least historically, by approximately 30 attorneys.^[14]

Only one of the existing FTC commissioners, Democrat Rebecca Slaughter, was serving when President Biden took office. Democrats Lina Khan (chair) and Alvaro Bedoya joined on 15 June 2021 and 16 May 2022, respectively.^[15] Chair Khan’s appointment was controversial, both in terms of process and substance.^[16] Over the following year, both Republican commissioners resigned. Noah Phillips resigned in October 2022 in a cordial letter to FTC employees.^[17] Christine Wilson, prior to circulating her letter to FTC employees in March 2023,^[18] authored an op-ed in the Wall Street Journal announcing her resignation and rebuking Chair Khan and ‘her disregard for the rule of law and due process’.^[19] In July 2023, President Biden nominated Andrew Ferguson and Melissa Holyoak to fill the vacancies for the Republican commissioners. At the time of writing, the US Senate had not yet voted to confirm them.

Clearance

Although the DOJ and FTC share jurisdiction, the agencies do not concurrently investigate mergers. Rather, they divide matters between themselves on the basis of expertise as part of the ‘clearance process’.^[20] As a practical matter, when they are notified about a potential merger, each agency conducts an initial evaluation to determine if the transaction warrants further review and falls within the agency’s subject matter expertise. If those conditions are satisfied, the agency will seek clearance from the other agency to open an investigation. Occasionally, however, a transaction will fall into an area in which each agency claims expertise or that cuts across both agencies’ expertise (eg, a vertical merger where one agency has expertise in the upstream market and the other has expertise in the downstream market), which may delay the launch of the investigation. When this happens, it can put merging parties in a difficult situation because the reviewing agency may lack the time necessary to assess the transaction within the 30-day waiting period. To avoid a scenario in which the investigating agency defaults to issuing a second request, it is not uncommon for the acquiring party to pull and refile its HSR filing, thereby granting the investigating agency an additional 30-day waiting period to evaluate the potential competitive impact posed by the transaction.^[21] Since 25 October 2021, the FTC has imposed an additional hurdle to clearance: companies that enter into consent decrees with the FTC will be required to obtain prior approval by the FTC, for a period of up to 10 years, for any transaction in the same product or geographical market as the consent decree.^[22] Under certain circumstances, the FTC may even require prior approval for transactions that extend beyond the relevant markets covered under the consent decree.^[23] In practical terms, the FTC’s prior approval policy will require otherwise non-reportable transactions to be reported to the FTC by companies subject to an FTC consent decree. Note, however, that the DOJ has not announced parallel obligations.

International cooperation

Many large transactions must be reported to foreign competition agencies, in addition to the DOJ and FTC. The DOJ and FTC often coordinate with foreign competition agencies in the form of periodic calls to share updates on process and timing, as well as to discuss facts and theories of harm. Because of statutory confidentiality requirements, merging parties must waive confidentiality for the agencies to discuss confidential information with foreign enforcers.^[24]

Whole-of-government approach

Cooperation is not limited to foreign enforcers. Depending on the deal, the DOJ and FTC also may coordinate with other government agencies. For instance, telecom deals require Federal Communications Commission (FCC) approval in addition to an antitrust review. The Biden administration has made a concerted effort to have a ‘whole-of-government’ approach to competition policy, memorialising this policy in an executive order.^[25] As a practical matter, similar to the dynamic in international cooperation, this can create additional avenues to block a deal. Sectoral regulators – such as the FCC or the Department of Transportation – typically have a ‘public interest’ standard and have greater leeway to block deals without going to an independent federal judge.

State attorneys general

AGs from individual US states (state AGs) are increasingly interested in, and active on, antitrust matters, including merger reviews.^[26] Although most US states have state-specific antitrust laws, state AGs also have parens patriae standing to bring suit under federal antitrust law, allowing them to act as quasi-sovereign enforcers in parallel with the agencies.^[27] Although no US state has a general mandatory premerger notification requirement,^[28] public reports of transactions can attract state AG attention. When there is state AG interest in a merger investigation, the agencies typically cooperate with the relevant state AGs, sharing procedural and substantive updates and even conducting joint meetings, with the relevant federal agency taking the lead. There is, however, the potential for divergence between the agencies and state AGs, and state AGs have challenged mergers cleared by the agencies and have obtained remedies in addition to those sought by the agencies.^[29]

Substantive legal framework

Section 7 of the Clayton Act provides the legal framework for substantive merger review.^[30] Like Sherman Act Sections 1 and 2,^[31] the statutory text gives minimal guidance, providing that mergers are prohibited where the effect ‘may be substantially to lessen competition, or to tend to create a monopoly’.^[32] Synthesising judicial precedent and economic analysis, the agencies have promulgated merger guidelines, including long-standing Horizontal Merger Guidelines (HMG) and more recently issued Vertical Merger Guidelines (VMG).^[33] Historically, these guidelines, particularly the HMG, have been highly influential in how courts apply the federal antitrust laws.^[34] In July 2023, the agencies issued a draft of new merger guidelines (the Draft Guidelines) that significantly revises the previous versions.^[35] As a result, the criteria for agency merger review is in flux. The draft guidelines are subject to a public comment period and likely will not be finalised until the end of 2023 or early 2024. As described below, however, the new guidelines could create a gap between how the agencies review mergers and the judicial precedent that courts use to decide cases where the agencies challenge proposed mergers. While the existing merger guidelines may soon be replaced, they nonetheless still serve as a useful benchmark in assessing transactional risk and the theories of harm that the agencies may explore (and the courts have traditionally recognised) when assessing a transaction.

Horizontal merger review

The agencies’ traditional approach to evaluating horizontal mergers, namely mergers between firms that compete directly, is laid out in the 2010 HMG. This approach largely tracks with how courts have evaluated these mergers. This judicial precedent is not overturned if the agencies withdraw or replace the guidelines, so agencies are likely to at least consider the traditional approach going forward to understand their prospects for success in the event of litigation.

Evidence of anticompetitive effects

The agencies consider various types of evidence, ranging from actual effects observed in consummated mergers to direct comparisons based on experience, to market shares and concentration, to substantial head-to-head competition and even to the ‘maverick’ status of one of the merging parties. The primary sources of evidence are documents and information from the merging parties, customers and other industry participants and observers.^[36]

Market definition

As a central part of traditional merger analysis, the agencies must confront market definition, often using various legal and economic tests to define the relevant product and geographic markets.^[37] The 2010 HMG explain how the agencies consider market participants, shares and concentration. Potential entrants can be considered part of the market. Shares are calculated based on the best available information, such as capacity or revenue. The agencies have traditionally used the Herfindahl–Hirschman Index (HHI) to measure concentration and consider mergers that result in certain levels of concentration to be presumptively anticompetitive.^[38] Under the Draft Guidelines, the agencies would still rely on HHI calculations but would presume the merger is likely to harm competition at lower thresholds.^[39] Further, the Draft Guidelines introduce a market share test whereby mergers in which the combined firm will exceed a 30 per cent market share will be presumed anticompetitive.^[40] The agencies also signal that they will review mergers for harms to markets other than product markets (eg, labour markets).^[41]

Unilateral effects and coordinated effects

The agencies’ analysis traditionally revolves around two theories of harm: unilateral and coordinated effects. Unilateral effects stem from the elimination of competition between the merging firms independent of any other market participants. These ‘are most apparent in a merger to monopoly in a relevant market, but are by no means limited to that case’.^[42] Coordinated effects occur when a merger ‘diminish[es] competition by enabling or encouraging post-merger coordinated interaction among firms in the relevant market that harms customers’.^[43] The Draft Guidelines contemplate other theories of harm, including those found in multi-sided platforms.^[44]

Defences

The agencies traditionally also consider the various defences or justifications for the merger, which are outlined in the 2010 HMG. Powerful buyers may constrain the ability of merging parties to raise prices, potentially reducing harm.^[45] If entry by a new competitor into the relevant market post-merger would be timely, likely and sufficient to counteract potential harmful effects, then the merger may be lawful.^[46] The HMG recognise that ‘a primary benefit of mergers to the economy is their potential to generate significant efficiencies and thus enhance the merged firm’s ability and incentive to compete’, resulting in pro-competitive effects. The agencies traditionally have credited verified and quantified merger-specific efficiencies,^[47] but the new Draft Guidelines devote meaningfully less attention to efficiencies,^[48] and current leadership is unlikely to credit any efficiencies defence. Finally, the agencies consider the possibility of a failing firm where, in the absence of the merger, the assets would exit the market, rendering an otherwise anticompetitive merger lawful.^[49] The rebuttal and defence evidence discussed in the Draft Guidelines include: (i) failing firms; (ii) entry and reposition; (iii) pro-competitive efficiencies; and (iv) structural barriers to coordination unique to the industry.^[50]

Vertical merger review

Vertical mergers are combinations between firms operating at different levels in related markets (eg, manufacturer–distributor). Although, as a class, they tend to raise fewer competitive concerns than horizontal mergers, vertical mergers can harm competition under certain circumstances, and the agencies have challenged vertical mergers consistently, if not frequently, over the past 25 years.^[51]

The VMG are newer and in some ways more controversial than their horizontal counterpart. The VMG were adopted in 2020. Prior to that, in 1984, the DOJ (but not the FTC) issued Non-Horizontal Merger Guidelines,^[52] which were widely considered a dead letter. The FTC withdrew the VMG in September 2021, saying they contained ‘unsound economic theories’.^[53] The Draft Guidelines address vertical mergers as part of the same document as horizontal mergers, signalling that agencies view mergers as less clearly fitting into just one of the two categories. The VMG nonetheless provide insights into antitrust precedent and agency considerations.

Market definition

In addition to defining a relevant product market, the agencies will also specify a ‘related product’, which could be ‘an input, a means of distribution, access to a set of customers, or a complement’ to the relevant product market.^[54]

Unilateral effects

The VMG identify two specific categories of unilateral effects. The first is ‘foreclosure and raising rivals’ costs’,^[55] of which the VMG provide six illustrative examples, including:

• straightforward input foreclosure (the merged firm restricting rivals’ access to a critical input);
• input foreclosure through increased bargaining leverage (a version of this theory was the DOJ’s principal theory of harm in its unsuccessful challenge of AT&T’s acquisition of Time Warner Inc);^[56]
• creating the need for two-level entry (post-merger, a new entrant is unlikely to enter successfully, unless it can enter at both levels); and
• raising rivals’ cost of distribution (limiting access to an important distribution channel).^[57]

The new Draft Guidelines propose calculating the ‘foreclosure share’ to determine whether the merger would foreclose a rival’s access to a related product on competitive terms. If the foreclosure share is above 50 per cent, the merger is presumed to substantially lessen competition.^[58]

The second unilateral effect is giving the merged firm access to competitively sensitive information. For example, if a downstream rival to the merged firm were a pre-merger customer of the upstream firm, the merger could give the merged firm access to its rival’s sensitive business information, which could harm competition.^[59] This is also considered in the new Draft Guidelines.^[60]

Coordinated effects

The VMG’s discussion of coordinated effects is sparse. It incorporates the HMG’s discussion of coordinated effects by reference and then gives an example of the merged firm’s access to competitively sensitive information, better enabling it to coordinate.^[61] Underscoring the fact-intensive nature of the analysis, the VMG add that ‘[s]ome effects of a vertical merger may make the market less vulnerable to coordination’.^[62] The Draft Guidelines discuss coordinated effects generally and do not meaningfully distinguish between those arising from vertical rather than horizontal mergers.^[63]

Defences and pro-competitive effects

The VMG acknowledge the potential pro-competitive effects flowing from vertical mergers. Most significantly, vertical mergers can eliminate double marginalisation, resulting ‘in the merged firm’s incurring lower costs for the upstream input than the downstream firm would have paid absent the merger’, which arises directly from the merger itself.^[64] The VMG state that it is ‘incumbent upon the merging firms to provide substantiation for claims that they will benefit from the elimination of double marginalization’, but add that the agencies will attempt to assess these benefits on their own.^[65] Unlike the prior VMG, the Draft Guidelines do not recognise pro-competitive benefits of vertical mergers, such as the elimination of double marginalisation.

Merger guidelines in the Biden administration

While they reflect substantial consensus within both the antitrust bar and federal judiciary regarding how to analyse mergers under Clayton Act Section 7, the Biden administration signalled early on that it intended to revise the merger guidelines.^[66] Upon taking office, President Biden quickly issued an executive order directing the agencies to re-evaluate their merger guidelines,^[67] and the FTC and DOJ issued a joint statement announcing ‘a hard look to determine whether [the guidelines] are overly permissive’ and promising to ‘launch a review of our merger guidelines with the goal of updating them’.^[68] As mentioned above, the agencies released the Draft Guidelines in July 2023. The revisions reflect the agencies’ willingness under the Biden administration to venture into novel territory, including by investigating merger consequences beyond the scope of the HMG and VMG, such as how transactions impact labour markets.^[69]

The impact of the Draft Guidelines is unknown. The Biden administration is adding substantially to the process of merger clearance and signalling that more deals will receive tougher regulatory scrutiny. The proposed criteria and the lower structural thresholds for presumptive harm suggest that aggressive enforcement will continue during the agencies’ review period, but it is unclear whether this posture will lead to more blocked deals where antitrust laws and judicial precedent remain unchanged and in tension with some of the agencies’ proposed changes.

In-depth merger reviews

This section describes the flow of a typical in-depth merger review. First, however, some context is necessary. US merger review functions like a funnel. The HSR Act filing requirement is the wide mouth, capturing a large number of transactions, the majority of which raise no competitive issues and face no scrutiny beyond a review of the filing itself. As the funnel narrows, a small number, about one in ten, trigger a preliminary investigation, in which the agencies engage in the clearance process. Narrower still on the funnel, a subset of those preliminary investigations draw a second request and a lengthy, drawn-out investigation. At the very end of the funnel, a handful each year result in some action by the reviewing agency – either a settlement or a challenge.

Statistics published by the agencies illustrate this point. In 2021, the most recent year for which official statistics are available, there were a little more than 3,500 HSR filings, about a 115 per cent increase from the prior year.^[70] Almost two-thirds requested early termination,^[71] and the agencies granted early termination less than 20 per cent of the time, which is largely due to the suspension of granting early termination early in 2021.^[72] Less than 8 per cent of HSR filings resulted in a preliminary investigation.^[73] Less than 2 per cent resulted in a second request, although this equates to 65 second requests in total, which is the largest number issued by the agencies in 20 years.^[74] Preliminary figures posted by the FTC for beyond 2021 indicate the number of HSR filings is decreasing, with only around 2,500 filings in 2022 and only 120 filings in April 2023 (the lowest monthly number reported in the prior 18 months, and drastically lower than the 607 filings reported in November 2021).^[75] The proposed revisions to the HSR form, which would increase the burden on the merging parties to file HSR, could further reduce the volume of HSR filings.

For transactions that result in a second request, the merger review process can be lengthy and expensive. Not infrequently, merging parties subject to a preliminary investigation may pull and refile their HSR filings to reset the 30-day clock and provide themselves additional time to persuade the reviewing agency that a second request is unnecessary or can be narrowly drawn.^[76]

Second requests, once issued, require the merging firms to produce massive amounts of information and data and make available businesspeople for depositions. While any given second request is tailored to each specific transaction, the agencies have posted models on their websites.^[77]

One option for parties subject to a second request is to comply and certify substantial compliance, triggering a 30-day window for the reviewing agency to decide whether to sue. However, this risks alienating the decision maker and incentivising the reviewing agency to prepare for litigation rather than assessing potential resolutions short of litigation. This can be a particularly undesirable situation, especially if the delay caused by litigation with an agency allows one of the parties to terminate the merger agreement.^[78]

Another option is for parties subject to a second request to engage with the reviewing agency by entering into a timing agreement, committing to rolling productions of documents and data and giving the agency additional time in exchange for certain process guarantees, including substantive engagement with staff and audiences with decision makers. The DOJ and FTC have each published model timing agreements.^[79]

While every investigation is different, most follow the same general pattern. There is an initial back and forth between the parties and the investigating staff on facts and theories. If concerns are not resolved in the course of the investigation, the staff will give the merging parties feedback on the staff’s concerns, which the staff have likely embodied in a recommendation memorandum to the reviewing agency’s decision makers. The staff’s recommendation memoranda are frequently lengthy documents, almost like summary judgment briefs, outlining relevant facts and theories of harm, addressing both strengths and weaknesses. Near the end of the review period, the parties will meet with decision makers and make their case that the merger should not be challenged.

If the concerns expressed by the agency can be remedied (eg, overlaps in distinct geographical or product markets), the parties may short-circuit this process by offering divestitures and shifting to settlement negotiations. This often happens entirely at the staff level (although the decision makers must, of course, approve any settlement), but is occasionally prompted by concerns underlined by the decision makers.

The DOJ, however, has accepted only one settlement under Kanter’s leadership as at the time of writing, and the settlement came in the midst of litigation that proved increasingly hostile for the DOJ.^[80] In response to the DOJ’s current resistance to settlement, merging parties often engage in self-help and force DOJ to ‘litigate the fix’. In that situation, the two sides argue the competitive impact of the transaction as ‘remedied’ by the proposed divestiture and not necessarily the original merger described in the parties’ HSR filing.

If the concerns remain and cannot be remedied, the reviewing agency may take action to block the deal from closing. Faced with this prospect, merging parties frequently abandon their transactions, but occasionally litigate and sometimes prevail in court.^[81]

Merger enforcement under the Biden administration

Over halfway through his term, President Biden has pursued an antitrust merger enforcement policy that is proving to be a difficult environment for mergers, and even for vertical mergers, which have historically not been a big focus for the agencies. President Biden himself has criticised the antitrust consensus over the past 40 years as being too lenient,^[82] and his appointments to key roles favour aggressive enforcement. Shortly after she was confirmed to the FTC and then immediately elevated to chair, Chair Khan held an open meeting and pushed through seven resolutions that identified enforcement priorities and authorised compulsory processes for investigations into those areas.^[83] One resolution specifically identified merger investigations as a priority area.^[84] While many of the other resolutions go beyond merger enforcement, they suggest that the FTC will be particularly focused on mergers involving technology platforms, healthcare and pharmaceuticals.^[85]

Already, the agencies have been more willing to impose higher regulatory costs (for example, ‘pausing’ early termination, proposing the expansion of information submitted in an HSR filing and signalling greater merger scrutiny through the Draft Guidelines)^[86] and have been less sympathetic to complaints about process and burden concerns.^[87] With regard to monetary cost, Congress passed legislation increasing the HSR filing fees for large mergers, in some cases almost 10 times the previous fee.^[88] In terms of process, the FTC’s recent practice of issuing warning letters to parties when the agency cannot conclude its investigation within the timing constraints of the HSR Act has increased regulatory uncertainty for merging parties. These letters notify parties that they may consummate their mergers at their own risk if they do so prior to receiving formal notice of clearance from the agency.^[89]

In relation to this, merger enforcement is likely to be less predictable, with the agencies exploring and even pursuing novel theories, including investigations focused primarily on labour markets.^[90] Past merger resolutions may not serve as useful predictors of future resolutions. The agencies, however, have so far achieved only moderate success in litigating mergers. Some attribute this to the delta between the aggressive approaches and novel theories of the agencies and the existing law, which has not been updated to reflect these.

Several recent dispositions illustrate the agencies’ mixed track record.

UnitedHealth/Change Health

Illustrating the trend of strong vertical merger enforcement is UnitedHealth Group’s acquisition of Change Healthcare, which the DOJ called ‘the leading source of key technologies that United’s health insurance rivals rely on to compete with United’.^[91] In conjunction with the AGs of Minnesota and New York, the DOJ sued to block the transaction in February 2022. According to Principal Deputy AAG Doha Mekki of the DOJ, ‘[t]he proposed transaction threatens an inflection point in the health care industry by giving United control of a critical data highway through which about half of all Americans’ health insurance claims pass each year’.^[92] Also motivating the DOJ’s challenge was a concern that the ‘proposed transaction also would eliminate United’s only major rival for . . . a critical product used to efficiently process health insurance claims and save health insurers billions of dollars each year’, thereby providing ‘United a monopoly share in the market’.^[93]

To address the horizontal overlaps between the parties, UnitedHealth proposed a divestiture of Change’s first-pass claims editing business. The DOJ viewed this divestiture as inadequate to resolve its competitive concerns, setting up a trial involving ‘litigating the fix’.

The court sided with the merging parties and determined that ‘United’s incentives to protect external customers’ data outweigh its incentives to “misuse” that data’.^[94] The DOJ initially appealed the lower court’s ruling but later dismissed its appeal.

Assa Abloy/Spectrum

This transaction serves as another example of ‘litigating the fix’ and stands as the DOJ’s only merger settlement under Kanter’s leadership as at the time of writing. The dispute involved a proposed combination of two residential door hardware companies, Assa Abloy and Spectrum Brands. In its complaint, the DOJ alleged that both companies ‘are part of a trio that today dominate the concentrated U.S. residential door hardware industry’.^[95] In an attempt to resolve the DOJ’s concerns, Assa Abloy proposed divesting its North American residential locks businesses to home security company Fortune Brands, but the DOJ preceded with its lawsuit.

Six days into the bench trial, after a number of preliminary rulings, the trial paused for a four-day hiatus, during which time the parties reached a settlement. The settlement added multifamily smart lock applications to the divestiture package. The DOJ stated that ‘[t]he United States does not contend that the relief obtained by the proposed Final Judgment will fully eliminate the risks to competition alleged in the Complaint’, but that ‘[b]ased on the totality of circumstances and risks associated with this litigation . . . the United States has agreed to the proposed Final Judgment’.^[96]

Illumina/Grail

The FTC investigated and later challenged the proposed vertical merger of DNA sequencing provider Illumina, Inc and multi-cancer early detection (MCED) testing producer Grail, Inc. Illumina sought to buy back Grail, which was previously part of Illumina before being spun off in 2016. The FTC’s merger investigation has been lengthy and involved nearly every stage of the FTC merger review process. On 20 March 2021, the FTC issued its complaint^[97] and stated in its press release that the merger ‘would likely reduce innovation in this critical area of healthcare, diminish the quality of MCED tests, and make them more expensive’.^[98] In accordance with FTC procedure, an administrative hearing was held before the FTC’s administrative law judge (ALJ), who sided with the merging parties, saying the FTC failed to prove that ‘Illumina’s post-Acquisition ability and incentive to foreclose or disadvantage Grail’s alleged rivals is likely to result in a substantial lessening of competition in the relevant market for the research, development, and commercialization of MCED tests’.^[99]

However, the ALJ’s decision is not the final word, as the Commission then issues its opinion and order that may or may not align with the findings of the ALJ. Here, the Commission voted 4–0 to block the transaction and ordered Illumina to divest Grail, which had already been acquired during the pendency of the administrative hearing. Illumina opted to appeal the Commission’s decision and the US Court of Appeals for the Fifth Circuit will consider the case on an expedited appeal. At the time of writing, the case was still pending.

Microsoft/Activision

In another challenge to a vertical merger, the FTC sued to block Microsoft Corp’s acquisition of video game developer Activision Blizzard, Inc. Microsoft, among other things, sells its Xbox gaming console and sells a video game subscription service called Xbox Game Pass. In its complaint, the FTC cited Microsoft’s prior acquisition of another game developer, where it made several popular titles exclusive to Microsoft’s platform. The administrative hearing is scheduled for August 2023.

The FTC’s investigation of Microsoft/Activision is occurring alongside reviews by competition regulators in other jurisdictions. The UK Competition and Markets Authority blocked the transaction, but the merging parties appealed.^[100] That appeal has been paused while the regulator considers a restructured deal. Shortly after the UK’s initial decision to block the deal, the European Commission came down the other way and cleared the transaction after receiving commitments from the parties.^[101]

Booz Allen Hamilton/EverWatch

The DOJ sued to block Booz Allen’s proposed acquisition of EverWatch. Both companies, among other things, provide services to the defence and intelligence community. In its press release upon filing its complaint, the DOJ argued that the merger ‘threatens imminent competition for a government contract to provide operational modeling and simulation services to the National Security Agency (NSA)’.^[102] As is customary to prevent transactions that would otherwise close before trial, the DOJ sought a preliminary injunction where it focused its arguments on the fact that this merger would create a monopoly of companies bidding on this particular NSA contract. The court first found that there would be no anticompetitive harm, as Booz Allen did not increase prices in the past and was incentivised to keep its prices low to obtain other government contracts in the future. The court criticised the government’s overly narrow product market, which only included a single government contract. The parties closed the transaction and the DOJ abandoned its challenge to the merger.

Notes