The Public Competition Enforcement Review: USA


In 2020, the Antitrust Division of the US Department of Justice (DOJ) sued Google and the Federal Trade Commission (FTC) sued Facebook. State attorneys general also sued these companies. These complaints allege that the companies, through various business practices, monopolised certain markets in which they operate. The complaints were anticipated after the agencies confirmed investigations of the companies last year.

The agencies also continued to pursue a vigorous enforcement agenda in other areas. The DOJ announced several criminal cartel enforcement actions, including several in the generic pharmaceuticals industry, as well as the first-ever criminal charges for antitrust violations in the labour market (involving 'no poach' and wage-fixing agreements). The FTC filed a case against individuals and companies it alleges illegally monopolised a pharmaceutical market. Meanwhile, both the FTC and DOJ continued to be active in investigating mergers. There were a number of matters settled with divestitures or conduct remedies, several deals that were abandoned in the face of regulatory challenges and several cases that were litigated before the courts and at the FTC. In addition, the agencies finalised and published their Vertical Merger Guidelines, which replaced older guidance that had largely become outdated.

The DOJ was particularly active in issuing business review letters in which it examined numerous issues at the request of businesses and industry groups. These letters address areas including: collaboration in the fight against covid-19,2 the International Swaps and Derivatives Association's (ISDA) proposed revisions to language for over-the-counter derivatives contracts to address uncertainty stemming from the expected cessation of LIBOR and other interbank offered rates,3 group purchasing activities4 and 5G technology in the auto industry.5

Of particular significance, the DOJ supplemented a 2015 business review letter issued to the Institute of Electrical and Electronics Engineers (IEEE) related to that organisation's patent policy. According to the DOJ, the update was issued 'to address concerns raised publicly by industry, lawmakers, and former department and other federal government officials that the 2015 letter has been misinterpreted, and cited frequently and incorrectly, as an endorsement of the IEEE's Patent Policy' and to address 'aspects of the 2015 letter [that] had become outdated based on recent jurisprudential and policy developments'.6 The DOJ described the issuance of the supplement as an 'extraordinary step'.7 In the letter, the DOJ urged the IEEE to evaluate whether changes to its Patent Policy were appropriate, and cited concerns that the Policy could be seen as limiting patent holders' rights to seek injunctive relief, 'limit[ing] the scope of available royalties more narrowly than the current case law or policy would endorse', and did not consider 'the possibility of “hold out” by patent implementers or the Policy's effect on patent holders' innovation incentives'.8

The FTC and US Food and Drug Administration (FDA) issued a statement describing their efforts to 'work together to promote competitive markets for biological products'.9 The statement sets out ways in which the agencies 'are collaborating to support appropriate adoption of biosimilars, deter false or misleading statements about biosimilars, and deter anticompetitive behaviors in this industry'.10

The agencies' international activities also continued. In September, the DOJ and FTC hosted the virtual 19th Annual International Competition Network (ICN) conference and the DOJ signed a Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities with Australia, Canada, New Zealand and the United Kingdom. This framework is meant to advance existing cooperation protocols and 'aims to strengthen cooperation between the signatories, and provides the basis for a series of bilateral agreements among them focused on investigative assistance, including sharing confidential information and cross-border evidence gathering'.11 Additionally, the DOJ signed a memorandum of understanding (MOU) with the Korean Prosecution Service which is 'designed to promote increased cooperation and communication on criminal antitrust enforcement and policy in both countries'.12


i Significant cases

Labour markets

On 7 January 2021, the DOJ announced that a federal grand jury in Texas returned an indictment charging Surgical Care Affiliates, Inc with two counts of violating the Sherman Antitrust Act by allegedly entering into agreements with two different companies not to solicit each other's senior-level employees.13 And in December 2020, the former owner of a physical therapist staffing company in Texas was indicted on wage-fixing charges.14 These indictments are the first-ever federal criminal charges for antitrust violations in the labour market, and are a very significant development for antitrust enforcement.


In April 2020, the DOJ announced that a Florida oncology group has agreed to pay a criminal penalty of US$100 million, which is the statutory maximum amount, to resolve a charge that it conspired with a competing group to enter into a product allocation scheme involving types of cancer treatments.15 In addition to the monetary penalty, the defendant, Florida Cancer Specialists and Research Institute LLC (FCS), agreed to enter into a deferred prosecution agreement (DPA), cooperate with the DOJ's ongoing investigation and not enforce non-compete agreements with current or former employees. FCS also agreed to pay US$20 million to settle Florida state antitrust and consumer protection claims.

The use of a DPA is notable. Typically, companies are required to plead guilty when settling criminal antitrust charges with the DOJ. However, because a criminal conviction would cause FCS to be debarred from certain federal programmes, and in view of the defendant's 'substantial cooperation' in the investigation, the DOJ agreed to accept a DPA. Later in the year, the company's president was indicted on related charges.16

Generic pharmaceuticals

The DOJ continued to pursue its ongoing investigation into anticompetitive conduct in the generic pharmaceutical industry. In February 2020, a former 'senior executive at a generic pharmaceutical company based in New Jersey' pleaded guilty to charges related to his involvement in a price-fixing, bid-rigging and market-allocation conspiracy.17 In March 2020, a grand jury charged the former Vice President of Sales and Marketing of a different company for his alleged involvement in a conspiracy 'to increase prices and allocate customers for numerous drugs, including, but not limited to, medications used to treat and manage arthritis, seizures, pain, various skin conditions, and blood clots' and for making false statements to the Federal Bureau of Investigation (FBI).18 Also in March, Sandoz Inc agreed to a US$195 million criminal penalty for its involvement in four conspiracies.19 The DOJ says this is the largest penalty for a domestic antitrust case to date.20 Later in the year, Apotex entered into a deferred prosecution agreement with the DOJ and agreed to a US$24.1 million penalty for its involvement in a conspiracy related to the drug pravastatin.21 Glenmark,22 Taro Pharmaceuticals23 and Teva Pharmaceuticals24 were also charged with antitrust crimes.

Suspension assemblies in hard disk drives

In July 2019, NHK Spring Co Ltd, a Japanese manufacturer of suspension assemblies used in computer hard disk drives, agreed to plead guilty to its role in a global conspiracy to fix prices.25 Specifically, the felony charge alleged that NHK Spring agreed with co-conspirators to refrain from price competition, to allocate their respective market shares for the suspension assemblies and to exchange pricing information.26 Subject to court approval, NHK Spring agreed to pay a US$28.5 million criminal fine and to cooperate in the ongoing investigation.27 Two executives of the company were indicted in February 2020.28

Commercial flooring contractors

The DOJ continued its ongoing enforcement action against bid rigging and price fixing by commercial flooring contractors in the Chicago area, the first charges of which were announced in April 2019.29 In March 2020, the DOJ announced guilty pleas by two individuals who, according to their plea agreements, 'engaged in a conspiracy to suppress and eliminate competition in the commercial flooring market by agreeing with other individuals and companies to submit “comp,” or complementary, bids so that the designated company would win the bidding'.30 Another individual was charged with bid rigging and money laundering;31 and a company, Vortex Commercial Flooring, pleaded guilty to a price-fixing charge.32 There are six guilty pleas to date in the investigation.

Insulation installation contracts

Following the first convictions in its ongoing investigation into bid rigging by insulation installation contractors in 2019,33 the DOJ announced in 2020 that a company and its co-owner pleaded guilty for their involvement in a conspiracy 'with other insulation contractors to rig bids and engage in fraud on contracts for installing insulation around pipes and ducts on construction projects at universities, hospitals, and other public and private entities in Connecticut'.34 According to the DOJ, 'the conspirators discussed prices and agreed on bids that inflated prices to their customers by approximately 10 percent' and 'perpetrated the bid-rigging and fraud schemes using phones for which the registration masked the identity of the users and an encrypted disappearing messaging app'.35

Online auctions for surplus government equipment

In April 2019, the DOJ filed its first criminal charge in its ongoing investigation into bid rigging at 'online public auctions of surplus government equipment' conducted by the US General Services Administration (GSA).36 The 'owner of a Texas company that purchases computers to resell and recycle' pleaded guilty to a one-count felony charge.37 According to the charge, the company and its co-conspirators obtained the surplus government equipment by 'agreeing which co-conspirators would submit bids for particular lots . . . and which co-conspirator would be designated to win a particular lot offered' for auction by the GSA.38 A second individual located in Pennsylvania pleaded guilty to his involvement in the conspiracy in September 2019.39 A third indictment was returned in February 2020.40

Broiler chickens

In June 2020, a federal grand jury indicted four individuals for conspiring to fix prices and rig bids for broiler chickens.41 This was followed by a superseding indictment in September 2020.42

Ready-mix concrete

In September, the DOJ announced an indictment against a ready-mix concrete company and four individuals charging them with 'conspiring to fix prices, rig bids, and allocate markets for the sale of ready-mix concrete used in residential, commercial, and public projects'.43 The indictment alleges that a salesman at one of the companies was 'a conduit to exchange price-increase letters and other competitive information between the defendants and other co-conspirators'.44

ii Trends, developments and strategies

In June 2020, the US Securities and Exchange Commission (SEC) and DOJ signed a MOU to enhance cooperation between the two agencies.45 According to the agencies the MOU is meant to aid in their efforts to promote competition in the securities industry. The MOU contains provisions relating to periodic meetings and the exchange of information between the two agencies. While it remains to be seen, this development could portend a heightened focus on civil and criminal enforcement in securities markets.

iii Outlook

Among other areas of cartel enforcement, one might expect continued focus on no-poach and wage-fixing investigations and additional actions in the DOJ's generic pharmaceuticals investigation. In addition, the DOJ is likely to continue its investigation and prosecution of companies and individuals involved in government procurement. Along with the FBI, the Defence Department, the US Postal Service, and the General Services Administration, the DOJ formed a new government Procurement Collusion Strike Force in November 2019.46 According to Assistant Attorney General Delrahim's announcement regarding the strike force, 'more than one third of the Antitrust Division's 100-plus open investigations relate to public procurement or otherwise involve the government being victimized by criminal conduct'.47 The strike force expanded in 2020 to include nine US Attorneys' Offices, the US Air Force Office of Special Investigations and the Department of Homeland Security Office of Inspector General.48

Antitrust: restrictive agreements and dominance

i Significant cases


On 20 October 2020, the DOJ and a group of states filed a complaint against Google (which was later amended) alleging the company violated Section 2 of the Sherman Act by illegally maintaining a monopoly in markets for general search services, search advertising and general search text advertising.49 The complaint cites Google's agreements that allegedly: (1) 'lock up the preset default positions for search access points on browsers, mobile devices, computers, and other devices'; (2) require the 'preinstallation and prominent placement of Google's apps'; (3) 'tie Google's search access points to Google Play and Google APIs'; and (4) implement other restrictions. The complaint seeks injunctive relief.

Later, on 16 December 2020, a separate group of states filed a monopolisation suit against Google in a federal court in Texas.50 This complaint describes a host of behaviour that has led to an alleged unlawful monopolisation in a number of advertising-related markets.


On 9 December 2020, the FTC and a group of states filed separate but relatively similar complaints against Facebook, alleging that the company monopolised a market for 'personal social networking services' in the United States in violation of Section 2 of the Sherman Act.51 The states' complaint also alleges that Facebook violated Section 7 of Clayton Act when it acquired Instagram and WhatsApp. Both complaints seek injunctive relief in the form of changes to Facebook's offending business practices and possible divestiture of Instagram and WhatsApp. The FTC alleges that Facebook's market share is in excess of 60 per cent. The complaints focus on several examples of alleged exclusionary conduct, including: buying companies that present competitive threats to Facebook; imposing restrictive policies that unjustifiably hinder actual or potential rivals that Facebook does not or cannot acquire, such as conditioning access by third-party apps through application programming interfaces (APIs) on the apps' agreeing to not work with Facebook competitors and to not provide the same core functions that Facebook does; and placing restrictions on exporting data to competing social networks or an app that replicates a Facebook core function.

The lawsuits allege that the company's actions have decreased user choice, quality and innovation; and supressed competition for the sale of 'social advertising', resulting in higher prices to advertisers and decreased choice, quality and innovation. The states' complaint focuses on alleged degradation of privacy protections and options, and contains an allegation regarding the spread of misinformation and objectionable content.


The FTC and the State of New York filed suit against Vyera Pharmaceticals and Phoenixus and their former owners and executives Martin Shkreli and Kevin Mulleady for allegedly violating Sections 1 and 2 of the Sherman Act and New York state law by blocking 'lower-cost generic competition to Deraprim, an essential drug used to treat the potentially fatal parasitic infection toxoplasmosis' and maintain[ing] a monopoly on Deraprim'.52 According to the complaint, the defendants 'executed an elaborate, multi-part scheme to block generic entry', including imposing resale restrains on distributors which hamper the FDA approval process for potential competitors, cut off supply of the drug's active ingredient and prevented distributors from selling sales data to third parties.53 The complaint alleges that 'the purpose and effect' of this 'has been to thwart potential generic competition and protect the Daraprim revenues resulting from Vyera's shocking price increase'.54 Six more states joined the complaint after it was filed.

Paramount Decrees

On 22 November 2019, the DOJ announced that after 'a thorough review, including a 60-day public comment period', it filed 'a motion to terminate the Paramount Consent Decrees, which for over 70 years have regulated how certain movie studios distribute films to movie theatres'.55 According to the DOJ, the Paramount 'decrees required the movie studios to separate their distribution operations from their exhibition businesses. They also banned various motion picture distribution practices, including block booking (bundling multiple films into one theatre license), circuit dealing (entering into one license that covered all theatres in a theatre circuit), resale price maintenance (setting minimum prices on movie tickets), and granting overbroad clearances (exclusive film licenses for specific geographic areas)'. In seeking to terminate the decrees, the DOJ observed that '[n]ew technology has created many different movie platforms that did not exist when the decrees were entered into, including cable and broadcast television, DVDs, and the Internet through movie streaming and download services.' In August 2020, a federal court in New York terminated the decrees.56

Real estate broker commissions

After raising concerns that certain rules of the National Association of Realtors (NAR) – a trade association of real estate agents – violated Section 1 of the Sherman Act, the DOJ announced that it had entered into a proposed settlement requiring the repeal or modification of those rules. Specifically, the DOJ challenged rules that allegedly prohibited the disclosure of buyers' broker commissions to buyers, allowed 'buyer brokers to misrepresent to buyers that a buyer broker's services are free', limited access to homes for sale to brokers affiliated with a NAR multiple listing service, and allowed buyer brokers to filter listings based on the offered commission.57 The changes required by the settlement will, according to the DOJ, 'provide greater transparency to home buyers about the commissions of brokers representing home buyers (buyer brokers)', and will cease misrepresenting that buyer broker services are free, eliminate rules that prohibit filtering multiple listing services (MLS) listings based on the level of buyer broker commissions, and change its rules and policy which limit access to lockboxes to only NAR-affiliated real estate brokers.58

ii Trends, developments and strategies

The agencies have continued their enforcement of civil anticompetitive conduct matters with headline-grabbing suits against Google and Facebook. It remains to be seen whether or not the agencies will bring enforcement actions against other technology platforms, though 'big tech' antitrust issues are sure to be a continued source of discussion and debate in the coming year.

iii Outlook

The monopolisation cases against the technology platforms represent the first Section 2 cases brought by the agencies in a number of years and could signal a heightened vigilance in investigating and prosecuting monopolisation offences. We will watch with interest to see whether the agencies, under new leadership, will pursue additional such cases.

Merger review

In 2020, the DOJ and FTC continued their work investigating numerous proposed acquisitions. In addition, in a significant update, the agencies released Vertical Merger Guidelines in June 2020.59 These guidelines, which supersede vertical merger guidance issued by the DOJ in 1984, describe potential anticompetitive harms that the agencies believe may arise with vertical mergers, while continuing to recognise that such transactions can be procompetitive or at least competitively neutral. They detail how the agencies are likely to analyse mergers involving firms in 'non-horizontal' combinations, which, according to the guidelines, can include vertical mergers of firms at different levels of a supply chain, 'diagonal' mergers of firms at different levels of competing supply chains, and vertical aspects of 'mergers of complements'. The guidelines address potential competitive harms stemming from of market foreclosure, raising rivals' costs, access to competitively sensitive information and risks of coordination. In addition to these guidelines, the FTC issued a lengthy Commentary on Vertical Merger Enforcement.60

Also, in September 2020, the DOJ published a Merger Remedies Manual.61 The manual sets out the DOJ's approach to many issues encountered in designing acceptable remedies to mergers that would otherwise be challenged as anticompetitive by the DOJ. The guidance includes discussions relating to the evaluation of 'upfront' buyers and factors that, according to the DOJ, increase the risk that a remedy will not meet the goal of preserving competition. The manual reaffirms the DOJ's strong preference for structural – rather than behavioural – relief, i.e., divestitures rather that ongoing conduct commitments that require continued monitoring.

i Significant cases

Litigated merger challenges

Sabre and Farelogix

The DOJ sought to block the acquisition of Farelogix by Sabre, arguing the acquisition would harm competition for airline 'booking services', a market in which the DOJ claimed Farelogix was acting as a 'disruptor'.62 After an eight-day bench trial, the court denied the DOJ's motion to enjoin the transaction, finding that the government did not meet its burden to establish a prima facie case of competitive harm. In particular, the court found that, among other things, the DOJ did not establish a 'proper relevant market', writing that '[a]s a matter of antitrust law, Sabre, a two-sided transaction platform, only competes with other two-sided platforms, but Farelogix only operates on the airline side of Sabre's platform.'63 Therefore, according to the court, the two companies do not compete with each other.64

The DOJ appealed, but, during the pendency of the appeal, the parties terminated their merger agreement in light of the UK Competition and Markets Authority's decision to block the transaction. The appeals court later vacated the district court's order granting judgment to the defendants 'because Sabre Corporation mooted the parties' dispute by terminating its acquisition'.65 Nevertheless, the appeals court stated that its action 'should not be construed as detracting from the persuasive force of the District Court's decision, should courts and litigants find its reasoning persuasive'.66

Arch Coal and Peabody Energy

The FTC successfully blocked a proposed joint venture between Peabody Energy and Arch Coal. The parties had sought to combine their coal mining operations in an area of Wyoming known as the Southern Powder River Basin (SPRB). In February 2020, the Commission filed an administrative action and a federal court suit to stop the combination, arguing that 'the transaction will eliminate competition between Peabody and Arch Coal, which are the two major competitors in the market for thermal coal in the Southern Powder River Basin, or SPRB, and the two largest coal-mining companies in the United States.'67

In September 2020 the federal court sided with the FTC and granted its motion for preliminary injunction.68 The court found that coal from the SPRB was a relevant product market and that the FTC carried its burden in establishing a presumptive lessening of competition in that market because the transaction would 'result in a significant market share [for the JV] and an undue increase in concentration'.69 After the court ruled, the parties announced that they would abandon the venture.70

Challenges mounted against consolidation in the provision of healthcare

Geisinger Heath and Evangelical Community Hospital

On 5 August 2020, the DOJ sued to enjoin Geisinger Health's partial acquisition of Evangelical Community Hospital. According to the DOJ's complaint, the transaction would reduce competition for inpatient hospital services in central Pennsylvania by creating 'substantial financial entanglements between these close competitors' and reducing 'both hospitals' incentives to compete aggressively'.71 The DOJ argues that 'Geisinger has a history of acquiring community hospitals in Pennsylvania' and that the parties sought to avoid antitrust scrutiny by entering into a 'partial-acquisition agreement' which nevertheless 'imposes significant entanglements between Defendants, reducing their incentives to independently compete against each other and increasing the likelihood of coordination'.72

Jefferson Health and Albert Einstein Healthcare Network

The FTC filed an administrative complaint and an action seeking a preliminary injunction against the proposed merger of Jefferson Heath and Albert Einstein Healthcare Network. The FTC argued that this acquisition 'would eliminate the robust competition between Jefferson and Einstein for inclusion in health insurance companies' hospital networks to the detriment of patients' in the Philadelphia, Pennsylvania region and lead to a firm with between 45 and 70 per cent of the relevant markets.73 The federal court denied the FTC's motion for preliminary injunction on 8 December 2020, finding that the FTC had not met its burden in establishing a relevant geographic market.74 The FTC appealed, but later dropped its appeal.

Hackensack Meridian Health and Englewood Healthcare Foundation

In another healthcare-related matter, the FTC filed an administrative complaint and motion for preliminary injunction in federal court to stop the proposed acquisition of Englewood Healthcare Foundation by Hackensack Meridian Health. Here the FTC argues that the acquisition would result in the merged firm would control half of the inpatient general acute care hospitals in a county in New Jersey and would 'leave insurers with few alternatives for inpatient general acute care services'.75 According to the FTC, if the deal were consummated, the hospitals 'would be able to demand higher rates from insurers for the combined entity's services, which, in turn, may lead to higher insurance premiums, co-pays, deductibles, or other out-of-pocket costs for plan members' and 'the elimination of competition would reduce incentives to improve quality'.76

FTC challenge of two consummated transactions

Axon Enterprise and VieVu

The FTC is challenging the combination of Axon and VieVu, two providers of body-worn camera systems for police. In an administrative complaint dated 3 January 2020, the FTC alleges that the acquisition increased market concentration to such a degree that it was presumptively unlawful; and eliminated competition between two companies which were each other's closest competitors.77 This, according to the FTC, 'removed VieVu as a bidder for new contracts and allowed Axon to impose substantial price increases'.78 The complaint also challenges provisions of the merger agreement pursuant to which VieVu's former parent company, Safariland, agreed to not compete with Axon and 'limited solicitation of customers and employees by' that company and Axon.79 The FTC alleges that these provisions 'are not reasonably limited to protect a legitimate business interest'.80 Safariland rescinded these agreements and settled these allegations with the FTC in April 2020; the remainder of the matter is continuing.81

Axon mounted a constitutional challenge against the FTC, seeking to enjoin the FTC's administrative proceeding on the grounds that the structure and certain procedures of the FTC are unconstitutional. A federal court dismissed these claims.82 Axon appealed and the Ninth Circuit affirmed the district court's dismissal.83

Altria and JUUL Labs

In an administrative complaint filed on 1 April 2020, the FTC alleges that certain agreements between Altria and JUUL Labs violate Section 1 of the Sherman Act and Section 7 of the Clayton Act. In particular, the FTC alleges that the two companies were competitors in the e-cigarette market but then came to an agreement whereby Altria agreed not to compete 'in return for a substantial ownership interest in JUUL'.84

Abandoned transactions

Illumina and Pacific Biosciences of California

On 17 December 2019, the FTC announced that it was seeking to block the acquisition of Pacific Biosciences of California (PacBio) by Illumina. The FTC alleged that 'Illumina is seeking to unlawfully maintain its monopoly in the U.S. market for next-generation DNA sequencing (NGS) systems by extinguishing PacBio as a nascent competitive threat', 'the proposed acquisition is illegal because it may substantially lessen competition in the U.S. NGS market by eliminating current competition and preventing future competition between Illumina and PacBio', and 'the acquisition would harm competition by reducing the combined firm's incentive to innovate and develop new products'.85 According to the FTC, Illumina's systems use 'short-read sequencing technology, which has been the predominant NGS technology in the United States for the last decade', and PacBio's systems use 'long-read sequencing technology'.86 However, 'PacBio has made significant technological advancements in recent years that have increased the accuracy and overall throughput of its systems, while lowering the cost'.87 'As a result', the FTC said, 'PacBio is a closer alternative to Illumina than ever before.88 Customers have already switched some sequencing volume from Illumina to PacBio for certain use cases and applications, and PacBio is poised to take increasing sequencing volume from Illumina in the future.'89 On 3 January 2020, the parties announced that they abandoned the deal.90

Post Holdings and Treehouse Foods

After the FTC challenged the deal at the end of December 2019, alleging that it would have anticompetitive effects in an alleged market for 'private label ready-to-eat cereals', Post Holdings announced that it was terminating the agreement to acquire TreeHouse Foods.91 The FTC argued 'that the acquisition would have given Post more than a 60 percent share of an already highly concentrated market, and eliminated the vigorous competition between Post and TreeHouse to serve retailers across the country'.92

Cengage and McGraw-Hill

On 4 May 2020, textbook publishers Cengage and McGraw-Hill jointly agreed to terminate their merger agreement 'due to a prolonged regulatory review process and the inability to agree to a divestitures package with the US Department of Justice'.93 The DOJ said that the 'merger would have combined the second and third largest publishers of textbooks in the United States in a market long dominated by three major textbook publishers'.94

CoStar and RentPath Holdings

A month after the FTC sued to block CoStar's proposed acquisition of RentPath, the acquisition agreement was terminated.95 The FTC argued that 'the acquisition would significantly increase concentration in the already highly concentrated markets for internet listing services advertising for large apartment complexes in 49 individual metropolitan areas across the United States.'96

Visa and Plaid

Alleging that 'Visa is a monopolist in online debit services' and that its acquisition of Plaid threatened that position, the DOJ sued to block the transaction on 5 November 2020.97 Notably, the DOJ asserted a Sherman Act Section 2 monopolisation claim in addition to the usual Clayton Act Section 7 claim in its complaint to enjoin the deal.98 The complaint alleged that 'by acquiring Plaid, Visa would eliminate a nascent competitive threat that would likely result in substantial savings and more innovative online debit services for merchants and consumers.'99 In the face of this challenge, the parties terminated their merger agreement.100

Several other deals were abandoned in the face of agency challenge, including: the merger of Aveanna Healthcare and Maxim Healthcare Services (FTC concerns about competition in markets for nursing services and private duty nursing care);101 Edgewell Personal Care's acquisition of Harry's and Procter & Gamble's acquisition of Billie (FTC concerns about competition in the shaving industry);102 and Methodist Le Bonheur Healthcare's acquisition of two hospitals from Tenet Healthcare (FTC concerns about healthcare competition in the Memphis, Tennessee area).103

Divestiture and conduct remedies

The DOJ required divestitures in several proposed mergers, including:

  1. ZF Friedrischshafen and WABCO Holdings (divestiture of steering components business);104
  2. Liqui-Box and DS Smith (divestiture of certain packaging product lines);105
  3. United Technologies Corporation and Raytheon (divestiture of military airborne radios, military global positioning systems) and large space-based optical systems businesses);106
  4. Dairy Farmers of America and Prairie Farms Dairy (divestiture of certain plants);107
  5. Communications and Power Industries and General Dynamics Satcom Technologies (divestiture of large geostationary satellite antenna subsidiary);108
  6. Anheuser-Busch InBev and Craft Brew Alliance (divestiture of Kona beer brand in Hawaii);109
  7. Waste Management and Advanced Disposal Services (divestiture of certain landfills, transfer stations, hauling locations and waste collection routes);110
  8. Liberty Latin America and AT&T (divestiture of certain fibre-based telecommunications assets and customer accounts);111
  9. Intuit and Credit Karma (divestiture of Credit Karma's tax business);112 and
  10. Harvard Pilgrim Health Plan and Health Plan Holdings (formerly known as Tufts Health Plan) (divestiture of commercial health insurance business in the State of New Hampshire).113

In 2019 the DOJ announced that it agreed with Novelis Inc and Aleris Corp to use binding arbitration 'to resolve the dispositive issue' of product market definition in the DOJ's challenge to that deal.114 This was the first-ever use of arbitration to settle a merger dispute with the government. In March 2020, the arbitrator ruled in favour of the DOJ, finding that 'aluminium auto body sheet constitutes a relevant product market'.115 As a result of this finding, divestiture of Aleris's North American aluminium auto body sheet business was required.

The FTC required divestitures in a number of deals, including:

  1. Compassion First and National Veterinary Associates (divestiture of veterinary clinics in three geographic markets);116
  2. FKI Holdings and Innocor (divestiture of polyurethane foam pouring plants in three regional markets);117
  3. Dannaher and GE Biopharma (divestiture of certain products used to manufacture biopharmaceutical drugs);118
  4. Össur Hf and College Park Industries (divestiture of prosthetic myoelectric elbow business);119
  5. AbbVie and Allergan (divestiture of assets related to exocrine pancreatic insufficiency pharmaceuticals);120
  6. Tri Star Energy and Hollingsworth Oil Company (divestiture of retail fuel assets in two local markets in Tennessee);121
  7. Eldorado Resorts ad Caesars Entertainment (divestiture of casino assets in Nevada and Louisiana);122
  8. Elanco Animal Health and Bayer Animal Health (divestiture of three animal health products);123
  9. Arko Holdings and Emipre Petroleum Partners (divestiture of certain retail fuel assets in local gasoline and diesel fuel markets in four states);124
  10. Upjohn and Mylan (divestitures related to several generic pharmaceuticals);125
  11. Stryker and Wright Medical Group (divestiture of ankle replacement and finger joint implant products);126 and
  12. E & J Gallo Winery and Constellation Brands (divestiture of several wine-related product lines).127

Consent decree enforcement

The DOJ also notably undertook several actions to enforce existing consent decrees. In January, the DOJ announced that a federal court entered a modified final judgment relating to the 2010 LiveNation/Ticketmaster merger.128 This action followed the DOJ's determination that the company 'repeatedly and over the course of several years engaged in conduct that, in the Department's view, violated' the 2010 consent decree, including by allegedly retaliating against concert venues that did not use Ticketmaster's ticketing services.129 The modified final judgment extends the term for five and a half years and includes provisions for the appointment of a monitoring trustee, among other things.

Also, in August 2020, the DOJ announced that it settled allegations that CenturyLink, a telecommunications company, violated a 2018 consent decree entered into in connection with its acquisition of Level 3 Communications. According to the DOJ, CenturyLink solicited customers of the company that purchased divestiture assets in violation of the decree. CenturyLink agreed to extend its non-solicitation obligations for two years and to the appointment of a monitoring trustee as terms of the settlement.130

The FTC took action to enforce one of its prior merger consent decrees. In July 2020, the Commission announced that Alimentation Couche-Tard and CrossAmerica Partners agreed to a civil penalty for failing to abide by the terms of a 2018 divestiture order.131

ii Trends, developments and strategies

Merger enforcement remains robust and the agencies continue to focus on thorough investigation of the matters before them. In addition to investigating proposed mergers, the FTC is undertaking a study of completed mergers. In September 2020, the Commission announced that it is expending its merger retrospective programme and will examine 'whether the agency's threshold for bringing an enforcement action in a merger case has been too permissive' and 'assess the performance of a pricing pressure index, merger simulation model, or other tools used to predict the effects of a proposed merger'.132 Later in the year the FTC announced that it was studying consolidation of physician groups and healthcare facilities.133 The DOJ announced that it is considering updating its guidelines on Bank Merger Competitive Review issued in 1995.134

iii Outlook

We expect the agencies to continue to devote substantial resources to merger investigations, and will watch with interest to see if the agencies will move aggressively on theories of vertical harm or against acquisitions of 'nascent' competitors.


The change in presidential administrations brings with it changes in the leadership of the US federal antitrust enforcement agencies. In January 2020, Makan Delrahim, Assistant Attorney General for Antitrust at the DOJ, announced his resignation; and FTC Chairman Joseph J Simons, a Republican, announced his resignation, and the resignations of several members of the FTC's senior staff. Additionally, Commissioner Rohit Chopra, a Democrat, was nominated to be the Director of the Consumer Financial Protection Bureau. Thus, at the time of writing, there are likely to be two vacancies in the FTC, each of which is expected to be filled by a Democrat. This would shift the party balance of the Commission to Democrats. We will watch with interest to see how the changes at the DOJ and FTC affect the agencies' enforcement agendas.

We will also watch with interest to see how the US Supreme Court rules in pending cases involving a challenge to the FTC's ability to obtain monetary restitution in federal court.135 Argument was held in the winter and a decision is expected by the end of June 2021. The outcome of these cases could have significant consequences for the FTC.


1 Aidan Synnott and William B Michael are partners at Paul, Weiss, Rifkind, Wharton & Garrison LLP. The authors thank Mark R Laramie for his invaluable assistance in preparing this chapter.

2 Press release, 'Department of Justice Issues Business Review Letter to Medical Supplies Distributors Supporting Project Airbridge Under Expedited Procedure for COVID-19 Pandemic Response', available at

3 Press release, 'Justice Department Issues Favorable Business Review Letter To ISDA For Proposed Amendments To Address Interest Rate Benchmarks', available at

4 Press release, 'Department of Justice Issues Business Review Letter to the American Optometric Association for Its Proposed Expansion of Its Group Purchasing Activities', available at

5 Press release, 'Justice Department Issues Business Review Letter To Avanci For Proposed Licensing Platform To Advance 5G Technology For Interconnected Automobiles', available at

6 Press release, 'Justice Department Updates 2015 Business Review Letter To The Institute Of Electrical And Electronics Engineers', available at

7 Business Review Letter to Institute of Electrical and Electronics Engineers (10 September 2020), available at

8 Id.

9 Joint Statement of the Food and Drug Administration and the Federal Trade Commission Regarding a Collaboration to Advance Competition in the Biologic Marketplace (3 February 2020), available at

10 As the statement explains, a biosimilar is a biologic that is 'highly similar to its reference product, a biological medication already approved by [the] FDA.'

11 Press release, 'Assistant Attorney General Makan Delrahim Signs Antitrust Cooperation Framework With Australia, Canada, New Zealand, And United Kingdom', available at

12 Press release, 'Justice Department Signs Antitrust Memorandum of Understanding with Korean Prosecution Service', available at

13 Press release, 'Healthcare Company Indicted for Labor Market Collusion', available at

14 Press release, 'Former Owner of Healthcare Staffing Company Indicted for Wage Fixing', available at

15 Press release, 'Leading Cancer Treatment Center Admits to Antitrust Crime and Agrees to Pay $100 Million Criminal Penalty', available at

16 Press release, 'Former Cancer Center President Indicted For Participation In Long-Running Antitrust Conspiracy', available at

17 Press release, 'Former Generic Pharmaceutical Executive Pleads Guilty for Role in Criminal Antitrust Conspiracy', available at

18 Press release, 'Generic Drug Executive Indicted on Antitrust and False Statement Charges', available at

19 Press release, 'Major Generic Pharmaceutical Company Admits to Antitrust Crimes', available at Major Generic Pharmaceutical Company Admits to Antitrust Crimes.

20 Id.

21 Press release, 'Generic Pharmaceutical Company Admits to Fixing Price of Widely Used Cholesterol Medication', available at

22 Press release, 'Fifth Pharmaceutical Company Charged In Ongoing Criminal Antitrust Investigation', available at

23 Press release, 'Sixth Pharmaceutical Company Charged In Ongoing Criminal Antitrust Investigation', available at

25 Press release, 'Japanese Manufacturer Agrees to Plead Guilty to Fixing Prices for Suspension Assemblies Used in Hard Disk Drives', available at

26 Id.

27 Id.

28 Press release, 'Two Executives Indicted in Long-Running Antitrust Conspiracy to Fix Prices for Disk Drive Components', available at

29 Press release, 'Former Vice President of Commercial Flooring Contractor Charged With Bid Rigging', available at

30 Press release, 'Two Commercial Flooring Executives Plead Guilty to Rigging Bids in Violation of Federal Antitrust Laws', available at

31 Press release, 'Flooring Executive Charged in Antitrust and Money Laundering Conspiracies', available at

32 Press release, 'Commercial Flooring Contractor Agrees To Plead Guilty To Bid Rigging', available at

33 Press release, 'Insulation Contractor Branch Manager Pleads Guilty To Bid Rigging and Fraud', available at; press release, 'Insulation Contractor Executive Pleads Guilty To Antitrust and Fraud Charges', available at; press release, 'President of Insulation Contracting Firm Pleads Guilty to Antitrust and Fraud Charges', available at

34 Press release, 'Insulation Contracting Firm and Co-Owner Plead Guilty to Antitrust and Fraud Charges', available at

35 Id.

36 Press release, 'Texas Bidder Pleads Guilty To Rigging Bids at Online Auctions for Surplus Government Equipment', available at

37 Id.

38 Id.

39 Press release, 'Online Bidder Pleads Guilty to Antitrust Charge for Rigging Bids at Government Auctions', available at

40 Press release, 'Missouri Businessman Arrested on Antitrust Charge for Rigging Bids at Online Government Auctions', available at

41 Press release, 'Senior Executives at Major Chicken Producers Indicted on Antitrust Charges', available at

42 Press release, 'Six Additional Individuals Indicted On Antitrust Charges In Ongoing Broiler Chicken Investigation', available at

43 Press release, 'Ready-Mix Concrete Company And Individuals Indicted For Fixing Prices And Rigging Bids In Violation Of Antitrust Laws', available at

44 Id.

45 Press release, 'Justice Department's Antitrust Division And The Securities And Exchange Commission Sign Historic Memorandum Of Understanding', available at

46 Press release, 'Justice Department Announces Procurement Collusion Strike Force: a Coordinated National Response to Combat Antitrust Crimes and Related Schemes in Government Procurement, Grant and Program Funding', available at

47 Press conference, 'Assistant Attorney General Makan Delrahim Delivers Remarks at the Procurement Collusion Strike Force Press Conference', available at

48 Press release, 'Justice Department's Procurement Collusion Strike Force Announces Eleven New National Partners', available at

49 Amended Complaint, US v. Google, No. 20-cv-3010 (D. District of Columbia 15 January 2021).

50 Texas v. Google, No. 20-cv-957 (ED Texas 16 December 2020).

51 Complaint, FTC v. Facebook, No. 20-cv-03590 (D District of Columbia 9 December 2020); Complaint, New York v. Facebook, No. 20cv3589 (D District of Columbia 9 December 2020).

52 FTC v. Vyera Pharmaceuticals, No. 20-cv-706 (SD New York 20 January 2020).

53 Id.

54 Id.

55 Press release, 'Department of Justice Files Motion to Terminate Paramount Consent Decrees', available at

56 US v. Paramount Pictures, No. 19-MC-544 (7 August 2020).

57 Press release, 'Justice Department Files Antitrust Case and Simultaneous Settlement Requiring National Association of Realtors® To Repeal and Modify Certain Anticompetitive Rules', available at

58 Id.

59 Vertical Merger Guidelines (30 June 2020), available at

61 Merger Remedies Manual (September 2020), available at

62 Complaint, US v. Sabre, No. 19-cv-1548 (D. Delaware 20 August 2019).

63 US v. Sabre, No. 19-cv-1548 (D. Delaware 8 April 2020).

64 Id.

65 US v. Sabre, No. 20-1767 (Second Circuit 20 July 2020).

66 Id.

67 Press release, 'FTC Files Suit to Block Joint Venture between Coal Mining Companies Peabody Energy Corporation and Arch Coal', available at

68 Federal Trade Commission v. Peabody Energy, No. 20-cv-317 (E.D. Missouri 29 September 2020).

69 Id.

70 Press release, 'Statement of FTC Bureau of Competition Director Ian Conner on Peabody Energy Corporation and Arch Coal's Abandonment of Their Proposed Joint Venture', available at

71 Complaint, US v. Geisinger Health, No. 20-cv-1383 (M.D. Pennsylvania 5 August 2020).

72 Press release, 'Justice Department Sues To Block Geisinger Health's Transaction With Evangelical Community Hospital', available at

73 Press release, 'FTC and Commonwealth of Pennsylvania Challenge Proposed Merger of Two Major Philadelphia-area Hospital Systems', available at

74 FTC v. Thomas Jefferson University, No. 20-cv-01113 (8 December 2020).

75 Press release, 'FTC Challenges Hackensack Meridian Health, Inc.'s Proposed Acquisition of Competitor Englewood Healthcare Foundation', available at

76 Id.

77 Complaint, In the Matter of Axon Enterprise, FTC No. D9389 (3 January 2020).

78 Press release, 'FTC Challenges Consummated Merger of Companies that Market Body-Worn Camera Systems to Large Metropolitan Police Departments', available at

79 Id.

80 Complaint, In the Matter of Axon Enterprise, FTC No. D9389 (3 January 2020).

81 Press release, 'VieVu's Former Parent Company Safariland Agrees to Settle Charges That It Entered into Anticompetitive Agreements with Body-Worn Camera Systems Seller Axon,' available at

82 Axon Enterprise v. Federal Trade Commission, No. 20-cv-14 (D. Arizona 20 April 2020).

83 Axon Enterprise Inc v. FTC, No. 20-15662 (9th Cir. 28 January 2021).

84 Press release, 'FTC Sues to Unwind Altria's $12.8 Billion Investment in Competitor JUUL', available at

85 Press release, 'FTC Challenges Illumina's Proposed Acquisition of PacBio', available at

86 Id.

87 Id.

88 Id.

89 Id.

90 Press release, 'Statement of Gail Levine, Deputy Director of FTC Bureau of Competition, Regarding the Announcement that Illumina Inc. has Abandoned Its Proposed Acquisition of Pacific Biosciences of California', available at

91 Press release, 'Post Holdings Terminates Agreement to Buy Ready-to-Eat Cereal Business from Treehouse Foods, Inc', available at

92 Press release, 'Statement of Ian Conner, Director of FTC Bureau of Competition, Regarding the Announcement that Post Holdings, Inc. has Abandoned Its Proposed Acquisition of TreeHouse Foods, Inc', available at

93 Press release, 'Cengage Reaffirms Commitment to Student Affordability Following Termination of McGraw-Hill Merger Agreement', available at

94 Press release, 'Cengage and McGraw-Hill Terminate Merger Agreement in Response to Antitrust Concerns', available at

95 Press release, 'RentPath terminates agreement to be acquired by Costar Group', available at

96 Press release, 'FTC Sues to Block CoStar Group, Inc's Proposed Acquisition of Chief Competitor RentPath Holdings, Inc', available at

97 Press release, 'Justice Department Sues to Block Visa's Proposed Acquisition of Plaid', available at

98 Complaint, US v. Visa, No. 20-cv-7810 (N.D. California 5 November 2020).

99 Id.

100 Press release, 'Visa and Plaid Announce Mutual Termination of Merger Agreement', available at

101 Press release, 'Statement of the FTC Chairman Regarding Announcement that Aveanna Healthcare and Maxim Healthcare Services have Terminated Their Acquisition Agreement', available at

102 Press release, Statement of Daniel Francis, Deputy Director of FTC Bureau of Competition, Regarding Announcement that Edgewell Personal Care Company has Abandoned Its Proposed Acquisition of Harry's, Inc, available at; Press release, 'Statement of Ian Conner, Director of the FTC's Bureau of Competition, Regarding the Announcement that The Procter & Gamble Company has Abandoned Its Proposed Acquisition of Billie, Inc.', available at

103 Press release, 'Statement of Daniel Francis, Deputy Director of the FTC's Bureau of Competition, Regarding the Announcement that Methodist Le Bonheur Healthcare has Abandoned Its Proposed Acquisition of Two Memphis-area Hospitals from Tenet Healthcare', available at

104 Press release, 'Justice Department Requires ZF and WABCO to Divest WABCO's Steering Components Business to Proceed With Merger', available at

105 Press release, 'Justice Department Requires Divestiture in Order for Liqui-Box to Proceed With Acquisition of Plastics Division of DS Smith', available at

106 Press release, 'Justice Department Requires Divestitures in Merger Between UTC and Raytheon to Address Vertical and Horizontal Antitrust Concerns', available at

107 Press Release, 'Justice Department Requires Divestitures as Dean Foods Sells Fluid Milk Processing Plants to DFA out of Bankruptcy', available at

108 Press release, 'Justice Department Requires Divestiture in Order for Communications and Power Industries to Proceed with Acquisition of General Dynamics Satcom Technologies', available at

109 Press release, 'Justice Department Requires Divestiture In Order For Anheuser-Busch To Acquire Craft Brew Alliance', available at

110 Press release, 'Justice Department Requires Waste Management To Divest Assets In Order To Proceed With Advanced Disposal Services Acquisition', available at

111 Press release, 'Justice Department Requires Divestiture In Order For Liberty Latin America To Acquire AT&T's Telecommunications Operations In Puerto Rico And The U.S. Virgin Islands', available at

112 Press release, 'Justice Department Requires Divestiture of Credit Karma Tax for Intuit to Proceed with Acquisition of Credit Karma', available at

113 Press release, 'Justice Department Requires Divestiture of Tufts Health Freedom Plan in Order for Harvard Pilgrim and Health Plan Holdings to Proceed With Merger', available at

114 Press release, 'Justice Department Sues to Block Novelis's Acquisition of Aleris', available at

115 Press release, 'Justice Department Wins Historic Arbitration of a Merger Dispute', available at

116 Press release, FTC Requires Veterinary Service Providers Compassion First and National Veterinary Associates to Divest Assets in Three Local Markets', available at

117 Press release, FTC Requires Polyurethane Foam Producers FXI Holdings, Inc. and Innocor, Inc To Divest Assets in Three Regional Markets, available at

118 Press release, FTC Imposes Conditions on Danaher Corporation's Acquisition of GE Biopharma, available at

119 Press release, 'FTC Imposes Conditions on Össur Hf's Acquisition of College Park Industries, Inc.', available at

120 Press release, 'FTC Imposes Conditions on AbbVie Inc's Acquisition of Allergan plc', available at

121 Press release, 'FTC Requires Divestitures as Condition of Tri Star Energy, LLC's Acquisition of Certain Assets of Hollingsworth Oil Company, Inc, C & H Properties, and Ronald L Hollingsworth', available at

122 Press release, 'FTC Requires Casino Operators Eldorado Resorts, Inc. and Caesars Entertainment Corporation to Divest Assets in Two Local Markets as a Condition of Merger', available at

123 Press release, 'FTC Requires Global Suppliers of Animal Health Products Elanco Animal Health, Inc. and Bayer Animal Health GmbH to Divest Assets in Three Product Markets, as a Condition of Merger', available at

124 Press release, 'FTC Requires Divestitures as Condition of Arko Holdings Ltd.'s Acquisition of Empire Petroleum Partners, LLC',

125 Press release, 'FTC Imposes Conditions on Combination of Pfizer Inc.'s Upjohn and Mylan NV', available at FTC Imposes Conditions on Combination of Pfizer Inc's Upjohn and Mylan N.V.

126 Press release, 'FTC Requires Medical Device Companies Stryker Corp. and Wright Medical Group N.V. to Divest Assets to Preserve Competition', available at

127 Press release, 'FTC Imposes Conditions on E. & J. Gallo Winery's Acquisition of Assets from Constellation Brands, Inc.', available at

128 Press release, 'Court Enters Judgment That Significantly Modifies and Extends Consent Decree With Live Nation/Ticketmaster', available at

129 Press release, 'Justice Department Will Move to Significantly Modify and Extend Consent Decree with Live Nation/Ticketmaster', available at

130 Press release, 'Justice Department Brings Enforcement Action Against Centurylink', available at

131 Press release, 'Alimentation Couche-Tard Inc. and CrossAmerica Partners LP Agree to Pay $3.5 Million Civil Penalty to Settle FTC Allegations that they Violated 2018 Order', available at

132 Press release, 'FTC's Bureau of Economics to Expand Merger Retrospective Program', available at

134 Press release, 'Antitrust Division Seeks Public Comments On Updating Bank Merger Review Analysis', available at

135 AMG Capital v. Federal Trade Commission, No 19-508, and Federal Trade Commission v. Credit Bureau Center, No 19-825.

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