The Public Competition Enforcement Review: USA

Overview

The past year was somewhat of a watershed moment for antitrust enforcement policy in the United States. Both the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) have new leaders who are seen to be 'progressive' enforcers, and they have taken office at a time when competition policy is at the forefront of public policy debates. These debates are taking place in Congress and in state legislatures – and, quite vigorously, at the FTC itself. In June, President Biden issued an executive order on competition that called for a wide-ranging examination of policy across many industries and called on the FTC and DOJ to examine specific policies related to mergers, patent issues and labour issues.2

At the FTC, old enforcement policies were rescinded and new policies implemented by the Democratic majority, often over the pointed objections of the Republican minority. Many of these new policies are aimed at merger enforcement, but there is a move among some commissioners to use rule-making authority to regulate business conduct. This is seen not only as part of a larger regulatory push but also as a response to the US Supreme Court decision in AMG Capital v. Federal Trade Commission, which curbed the FTC's ability to seek equitable monetary relief (including restitution payments or disgorgement of profits) in federal court. At present, there is an open seat at the FTC. The President nominated Alvaro Bedoya, a privacy scholar and advocate, to be a commissioner, but he has not yet been confirmed by the Senate.

At a time when we may be seeing increased convergence among enforcers in the United States and Europe, the agencies' international activities continued. For example, in December, the US agencies and the European Commission began a Joint Technology Competition Policy Dialogue in which the agencies 'reaffirm[ed] their mutual interest in cooperating on competition policy and enforcement overall and especially in technology sectors'.3 Earlier in the year, competition authorities in the United States, Canada, the United Kingdom and the European Union formed a pharmaceutical merger working group aimed at updating merger analysis in that industry.4

Cartels

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 Act by allegedly entering into agreements with two different companies not to solicit each other's senior-level employees.5 The company's alleged co-conspirator – DaVita Inc – and its former chief executive officer were indicted in July 2021.6 In December 2020, the former owner of a physical therapist staffing company in Texas was indicted on wage-fixing charges.7 A second individual was charged in April 2021.8 These indictments are the first-ever federal criminal charges for antitrust violations in a labour market and are a very significant development for antitrust enforcement.

The DOJ announced several other indictments for labour market offences in 2021: a healthcare staffing company was charged with 'entering into and engaging in a conspiracy with a competitor to allocate employee nurses and to fix the wages of those nurses' in Nevada;9 and six individuals in the aerospace industry were charged with 'participating in a long-running conspiracy to restrict the hiring and recruiting of employees among their respective companies'.10

Government procurement

Along with the FBI, the Defence Department, the US Postal Service and the General Services Administration, the DOJ formed a government Procurement Collusion Strike Force in November 2019.11 According to a DOJ statement at the time, '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'.12 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.13

In 2021, the DOJ announced several criminal enforcement actions relating to goods and services provided to governments. In January, the DOJ charged two companies with 'participating in a conspiracy to defraud the United States by impeding, impairing, obstructing, and defeating competitive bidding for a multi-million dollar foreign-language training contract issued by the National Security Agency'.14 The companies entered into deferred prosecution agreements with the DOJ and agreed to pay criminal penalties. In June, the DOJ announced a guilty plea and fine in a long-running conspiracy to rig bids for infrastructure projects for the North Carolina Department of Transportation.15 Also in June, the DOJ announced indictments and guilty pleas for bid rigging, market allocation and price-fixing of defence-related security services for US military bases and installations in Belgium.16 Additional guilty pleas were announced in October.17 In September, the DOJ announced that a concrete contractor pleaded guilty to rigging bids for concrete repair and construction services provided to Minnesota municipalities.18

Broiler chickens

In June 2020, a federal grand jury indicted four individuals for conspiring to fix prices and rig bids for broiler chickens.19 This was followed by a superseding indictment in September 2020.20 A trial was held in late 2021, but, after the jury was unable to reach a verdict, the court declared a mistrial and scheduled a new trial for 2022. Earlier in 2021, Pilgrim's Pride pleaded guilty and was sentenced to pay a US$107 million fine for its participation in the conspiracy and other broiler chicken producers and individuals were indicted.21

ii Trends, developments and strategies

For quite some time, DOJ officials have said that they are keenly focused on labour market antitrust violations, and, in 2021, the DOJ brought the first 'no poach' criminal charges. As the pending cases move through the courts, we will watch with interest to see how judges and juries deal with these charges.

iii Outlook

Among other areas of cartel enforcement, the investigation and prosecution of no-poach and wage fixing violations is likely to remain a top priority for criminal antitrust enforcement in the year to come. In addition, the DOJ is likely to continue its investigation and prosecution of companies and individuals involved in government procurement.

Antitrust: restrictive agreements and dominance

i Significant cases

Google

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.22 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.23 This complaint describes a host of behaviours that have led to an alleged unlawful monopolisation in a number of advertising-related markets. These suits are pending.

Facebook

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.24 The states' complaint also alleges that Facebook violated Section 7 of the 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 not to work with Facebook competitors and not to 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 suppressed 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. After the court granted Facebook's motion to dismiss the FTC complaint with leave to re-plead the complaint in June 2021, the FTC filed an amended complaint. The court largely denied Facebook's second motion to dismiss in January 2022 and the case is proceeding to the discovery phase.25 Also in June 2021, the court dismissed the states' case without leave to re-plead, finding that the states' claims were barred by the doctrine of laches.26 The states have appealed.

Pharmaceuticals

The FTC and the State of New York filed suit against Vyera Pharmaceuticals 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'.27 According to the complaint, the defendants 'executed an elaborate, multi-part scheme to block generic entry', including imposing resale restraints on distributors that hampered 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.28 The complaint alleged 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'.29 Six more states joined the complaint after it was filed.

In late 2021, the FTC announced that three of the defendants settled. Pursuant to the settlement, defendant Mulleady is to be barred from the pharmaceutical industry for seven years. Vyera agreed to pay up to US$40 million in equitable monetary relief.30 Defendant Shkreli proceeded to trial and on 14 January 2022 the judge found for the government and barred Shkreli from the pharmaceutical industry for life and ordered him to disgorge US$64.6 million.31

American Airlines–JetBlue northeast alliance

In September 2021, the DOJ, joined by several states and the District of Columbia, sued American Airlines and JetBlue, alleging that the airlines' alliance with respect to their operations in Boston and the major New York City area airports 'eliminate[s] important competition in these cities' and 'harm[s] air travelers across the country by significantly diminishing JetBlue's incentive to compete with American elsewhere, further consolidating an already highly concentrated industry'.32 The airlines have moved to dismiss the DOJ's complaint.

ii Trends, developments and strategies

The agencies have continued their enforcement of civil anticompetitive conduct matters with the pending suits against Google and Facebook, which now are in the discovery phase. It remains to be seen whether the agencies will bring additional enforcement actions against technology platforms, although big-tech antitrust issues are sure to be a continued source of discussion and debate in the coming year.

In addition, we will watch to see whether the FTC engages in competition-focused rule-making. Both Chair Khan and Commissioner Slaughter have expressed support for this, and whether the FTC attempts to promulgate such rules may depend on the views of whomever is confirmed to the open seat on the commission. Further, in July, the FTC rescinded its 2015 Statement of Enforcement Principles Regarding 'Unfair Methods of Competition' Under Section 5 of the FTC Act, which provided guidance on when the FTC would use its authority to challenge anticompetitive conduct that does not fall within the prohibitions of other antitrust laws. Whether the FTC will seek to take action against a broader range of conduct it deems to be unfair – beyond what the FTC has historically found to violate Section 5 – is also likely to depend on the views of the person who fills the open seat.

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. These suits were initiated during the prior administration. We will watch with interest to see whether the agencies, under new leadership, will pursue additional such cases.

Meanwhile, in September 2021, the FTC authorised its staff to issue compulsory process to investigate repair restrictions, abuse of intellectual property and monopolistic practices. According to the FTC, this authorisation 'will broaden the ability for FTC investigators and prosecutors to obtain evidence in critical investigations on key areas where the FTC's work can make the most impact'.33 Later in the year, the FTC announced that it is investigating supply chain disruptions.34 The outcome of these investigations may inform future enforcement initiatives.

Merger review

The year 2021 was an extremely busy one for merger activity in the United States, leading to a marked increase in the number of pre-merger notification filings. This, along with the change in presidential administration and agency leadership, led the FTC to suspend the granting of early terminations of the waiting period under the Hart–Scott–Rodino Act. The 'tidal wave' of filings also led the FTC to institute a policy of sending letters to parties when the FTC is unable to complete its merger review within the statutory time frame, warning that despite the expiry of the waiting period 'if the parties consummate [their] transaction before the Commission has completed its investigation, they would do so at their own risk', and that 'the Commission may still take further action as the public interest may require, which may include any and all available legal actions and seeking any and all appropriate remedies'.35 It should be noted that the ability of the federal agencies to challenge consummated mergers has not changed but the willingness to do so may have increased.

i Significant cases

Litigated merger challenges

Penguin Random House and Simon & Schuster

In November 2021, the DOJ sued to block book publisher Penguin Random House's proposed acquisition of Simon & Schuster. Interestingly, the DOJ's theory is that the merger would harm authors, particularly authors of 'top-selling' books, by diminishing competition for book advances.36 In other words, the government's theory is one of buy-side monopsony rather than the more common sell-side increase in market concentration.

United States Sugar and Imperial Sugar

Also in November 2021, the DOJ filed suit to block United States Sugar from acquiring Imperial Sugar, alleging that the combination of the two sugar refineries would result in a duopoly of refineries in the southeastern United States and raise prices for refined sugar and products containing sugar.37

Nvidia and Arm

In December 2021, the FTC brought an administrative complaint to enjoin Nvidia's proposed acquisition of Arm, alleging a vertical theory of competitive harm. Specifically, the FTC argues that 'the proposed vertical deal would give one of the largest chip companies control over the computing technology and designs that rival firms rely on to develop their own competing chips'.38

Challenges to 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'.39 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' that nevertheless 'imposes significant entanglements between Defendants, reducing their incentives to independently compete against each other and increasing the likelihood of coordination'.40 On 3 March 2021, the DOJ announced that it had reached a settlement with the parties involving, among other things, limits on Geisinger's investment in Evangelical.41 The DOJ said that 'the settlement allows procompetitive aspects of defendants' proposal to move forward', including by allowing the parties to collaborate on health records information technology upgrades.

Hackensack Meridian Health and Englewood Healthcare Foundation

In another healthcare-related matter, the FTC filed an administrative complaint and a motion for preliminary injunction in federal court in New Jersey 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 controlling 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'.42 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'.43 In August 2021, the court granted the FTC's request for a preliminary injunction and the parties appealed.44 The appeal is pending.

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 that were each other's closest competitors.45 This, according to the FTC, 'removed VieVu as a bidder for new contracts and allowed Axon to impose substantial price increases'.46 The complaint also challenges provisions of the merger agreement pursuant to which VieVu's former parent company, Safariland, agreed not to compete with Axon and 'limited solicitation of customers and employees by' that company and Axon.47 The FTC alleges that these provisions 'are not reasonably limited to protect a legitimate business interest'.48 Safariland rescinded these agreements and settled these allegations with the FTC in April 2020; the remainder of the matter is continuing.49

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.50 Axon appealed and the Ninth Circuit affirmed the district court's dismissal.51 However, the appeals court stayed the issuance of its mandate while Axon petitions the Supreme Court for certiorari. The high court has not yet ruled on the petition. Meanwhile, the FTC administrative proceeding is stayed.

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'.52 An FTC administrative law judge held a trial but has yet to issue a decision.

Illumina and Grail

In March 2021, the FTC challenged Illumina's then-proposed acquisition of the shares of Grail that it did not already own. (At the time, according to the FTC, Illumina, which founded Grail, owned 14.5 per cent of Grail's voting shares.) According to the FTC's administrative complaint, Illumina is 'the dominant provider of DNA sequencing' and Grail is developing a multi-cancer early detection (MCED) test, which is a liquid biopsy that relies on DNA sequencing to detect DNA from cancer cells present in the bloodstream.53 The FTC alleged that Grail and its competitors 'have no substitutes for Illumina's NGS's [next-generation sequencing] platforms' and that if the acquisition were allowed to proceed, it would harm competition in the not yet commercialised market for MCED tests. The FTC argued that 'Illumina will gain the incentive to foreclose or disadvantage firms that pose a significant competitive threat to Grail and to limit the competitiveness of any MCED product' and thus 'Illumina will control the fate of every potential rival to Grail for the foreseeable future.'

In response to the FTC's litigation, Illumina announced that it is 'irrevocably offering' a 'standard contract to any US oncology customer', which it says includes, among other things, terms for 'guaranteed access to the latest sequencing products' for 12 years, 'no price increases for the sequencing products covered by the agreement' and 'guarantees lower pricing for the sequencing products by 2025'. The FTC commenced an administrative trial in August 2021; no decision has been issued yet. Notably, the FTC dismissed its parallel federal court proceeding seeking a preliminary injunction because the European Commission 'announced that it has accepted requests from member states to assess Defendants' proposed transaction' and asserted that the parties could not close the transaction.54 Therefore, according to the FTC, a preliminary injunction was not necessary to preserve the status quo. The parties then closed their transaction on 18 August 2021. Illumina said that it 'believes the European Commission does not have jurisdiction to review the merger as the EU merger thresholds are not met, nor are they met in any EU member state'.55 The company said that Grail will be held as a separate company pending the European Commission's review.

Abandoned transactions

Numerous transactions were abandoned in the face of filed or threatened action by the agencies. These include:

  1. Procter & Gamble's proposed acquisition of Billie, a direct-to-consumer razor company, which the FTC alleged would have eliminated a nascent competitor;56
  2. Tronox's proposed acquisition of TiZir Titanium and Iron, which the FTC argued would have harmed Tronox's rival titanium dioxide producers by affecting an input supplied by TiZir;57
  3. Lehigh Cement's proposed acquisition of Keystone Cement, which the FTC alleged would have harmed cement customers in eastern Pennsylvania and western New Jersey;58
  4. Berkshire Hathaway Energy's proposed acquisition of the Questar Pipeline, which the FTC argued would have harmed competition for the transportation of natural gas from the Rocky Mountains to central Utah;59 and
  5. Great Outdoors' acquisition of Sportsman's Warehouse, which the FTC argued would have harmed competition in numerous local markets for the sale of outdoor gear.60

In addition, after the DOJ filed suit to block the merger of insurance brokerage firms Aon and Willis-Towers-Watson, the parties terminated their merger agreement. The DOJ alleged that the merger threatened to harm competition for several services provided by these companies and rejected remedies proposed by the parties.61

Divestiture and conduct remedies

The DOJ required divestitures in several proposed transactions, including:

  1. Republic Services and Santek Waste Services (divestiture of certain waste collection and disposal assets to address concerns about competition in small container commercial waste collection and municipal solid waste disposal services);62
  2. Stone Canyon and Morton Salt (divestiture of evaporated salt business);63
  3. Huntington Bancshares and TCF Financial, and BancorpSouth and Cadence Bank (divestitures of several bank branches and suspension of non-compete agreements);64
  4. Zen-Noh and Bunge (divestiture of grain elevators to address concerns about competition for grain purchases from and services to farmers);65
  5. Danfoss and Eaton (divestiture of orbital motor and hydraulic steering unit facilities to address concerns about competition in design, manufacture and sale of these products);66
  6. Gray Television and Quincy Media (divestitures of television stations to address concerns about competition affecting cable at satellite television subscribers and advertisers);67
  7. General Shale and Meridian Brick (divestitures of assets related to manufacturing and sale of residential brick);68
  8. Neenah Enterprises and US Foundry (divestiture of assets used in the manufacture of grey iron municipal castings to address concerns about competition in the supply of these products, which include manhole covers and frames);69
  9. Lactalis and natural cheese business of Kraft Heinz in the United States (divestiture of certain cheese businesses to address concerns about competition in the sale of feta and ricotta cheese);70 and
  10. S&P Global and IHS Markit (divestiture of certain price reporting agency businesses to address concerns about competition for the provision of petroleum, coal and petrochemical price reporting services).71

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

  1. Casey's General Stores and Bucky's, and Global Partners and Wheels (divestiture of several fuel stations to address concerns about competition in local retail gasoline and diesel sales);72
  2. ANI Pharmaceuticals and Novitium Pharma (divestiture of development rights to two generic drugs to address concerns about competition for SMX-TMP, an antibiotic, and dexamethasone, a drug used to treat inflammation);73
  3. Price Chopper and Tops Markets (divestiture of supermarkets to address concerns about competition for the sale of groceries in upstate New York and Vermont);74
  4. DaVita and University of Utah Health (divestiture of dialysis clinics in Provo, Utah);75 and
  5. 7-Eleven and Marathon Petroleum's Speedway retail fuel chain (divestiture of 'hundreds of stores used to sell gasoline and diesel fuel in 293 local markets across 20 states' for 7-Eleven's acquisition of Marathon's Speedway retail fuel chain to proceed).76

ii Trends, developments and strategies

In the past year, the US enforcement agencies have shown an appetite to challenge vertical mergers and transactions based on a labour-monopsony theory. These challenges will play out in the courts in the coming year and we may see how judges react to these theories. It will be important to consider the implications of the evolving merger enforcement landscape when businesspeople and their advisers contemplate deals going forward.

In the meantime, the FTC is showing signs of becoming more aggressive when settling merger matters, at least where divestitures are required. In October, the commission announced that it will 'routinely' require prior approval provisions in merger orders.77 The FTC said that these provisions would apply to parties' future transactions involving the same relevant market as the transaction giving rise to the order; and to any resale of assets acquired by a divestiture purchaser as part of a merger remedy. In certain circumstances, the FTC might also require prior approval provisions for future transactions involving different relevant markets, and for future transactions of parties that abandon a transaction after an FTC challenge.

One area of particular interest in the coming year will be cross-border merger enforcement. At a recent summit, the heads of the US agencies met with their counterparts from other G7 countries and, among other things, discussed opportunities for 'increased cooperation and coordination'.78 Given what may be closer convergence of enforcement philosophies on both sides of the Atlantic, we will watch with interest to see whether agency coordination will affect parties' ability to address challenges in US courts in a timely way. In the past year, we have seen examples of the FTC deciding not to seek a preliminary injunction in federal court (which in general would be expected to lead to a swifter resolution) and instead proceeding only in its internal administrative court. In these cases, investigations in Europe were proceeding in parallel. In general, these investigations can delay the parties' ability to close their transaction, and the FTC may conclude that because of this it need not go immediately to federal court.

iii Outlook

Merger review is at the centre of shifting enforcement policy, and many recent FTC actions are having the effect of introducing uncertainty into the review process. Thus far, the FTC's rescission of the Vertical Merger Guidelines has not had a practical effect on the theories the FTC is asserting in its vertical merger challenges – those challenges are based on theories of competitive harm described in the guidelines – but it remains to be seen whether future challenges will go beyond traditional theories of vertical harm. It also remains to be seen whether the DOJ will also jettison the vertical guidelines. Moreover, while the Horizontal Merger Guidelines remain in place at the agencies, both the FTC and DOJ are undertaking a review that may lead to changes in the year to come. The FTC Chair wrote in September that revising merger guidelines will be a 'key project', and described prior guidelines as representing 'a somewhat narrow and outdated framework for assessing mergers'.79

Conclusions

The shift in competition enforcement policy over the past year has garnered a great deal of attention, but enforcement activity, at least at the FTC, was actually down in the government's 2021 fiscal year.80 We will see in the coming year how the policy changes are implemented in individual enforcement actions. We will also watch with interest to see what, if any, legislation is enacted. Many of the pending proposals target mergers and conduct involving large online platforms, but other bills have the potential for a much wider reach.

Footnotes

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 Executive Order on Promoting Competition in the American Economy (9 July 2021), available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.

3 Inaugural Joint Statement, EU–US Joint Technology Competition Policy Dialogue (7 December 2021), available at https://www.justice.gov/opa/press-release/file/1453916/download.

4 Press release, 'FTC Announces Multilateral Working Group to Build a New Approach to Pharmaceutical Mergers', available at https://www.ftc.gov/news-events/press-releases/2021/03/ftc-announces-multilateral-working-group-build-new-approach.

5 Press release, 'Healthcare Company Indicted for Labor Market Collusion', available at https://www.justice.gov/opa/pr/health-care-company-indicted-labor-market-collusion.

6 Press release, 'DaVita Inc. and Former CEO Indicted in Ongoing Investigation of Labor Market Collusion in Health Care Industry', available at https://www.justice.gov/opa/pr/davita-inc-and-former-ceo-indicted-ongoing-investigation-labor-market-collusion-health-care.

7 Press release, 'Former Owner of Healthcare Staffing Company Indicted for Wage Fixing', available at https://www.justice.gov/opa/pr/former-owner-health-care-staffing-company-indicted-wage-fixing.

8 Press release, 'Second Individual Charged with Fixing Wages for Health Care Workers and Obstructing FTC Investigation', available at https://www.justice.gov/opa/pr/second-individual-charged-fixing-wages-health-care-workers-and-obstructing-ftc-investigation.

9 Press release, 'Health Care Staffing Company and Executive Indicted for Colluding to Suppress Wages of School Nurses', available at https://www.justice.gov/opa/pr/health-care-staffing-company-and-executive-indicted-colluding-suppress-wages-school-nurses.

10 Press release, 'Six Aerospace Executives and Managers Indicted for Leading Roles in Labor Market Conspiracy that Limited Workers' Mobility and Career Prospects', available at https://www.justice.gov/opa/pr/six-aerospace-executives-and-managers-indicted-leading-roles-labor-market-conspiracy-limited.

11 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 https://www.justice.gov/opa/pr/justice-department-announces-procurement-collusion-strike-force-coordinated-national-response.

12 Press conference, 'Assistant Attorney General Makan Delrahim Delivers Remarks at the Procurement Collusion Strike Force Press Conference', available at https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-procurement-collusion-strike.

13 Press release, 'Justice Department's Procurement Collusion Strike Force Announces Eleven New National Partners', available at https://www.justice.gov/opa/pr/justice-department-s-procurement-collusion-strike-force-announces-eleven-new-national.

14 Press release, 'Foreign-Language Training Companies Admit to Participating in Conspiracy to Defraud the United States', available at https://www.justice.gov/opa/pr/foreign-language-training-companies-admit-participating-conspiracy-defraud-united-states.

15 Press release, 'Engineering Firm Pleads Guilty to Decade-Long Bid Rigging and Fraud Scheme', available at https://www.justice.gov/opa/pr/engineering-firm-pleads-guilty-decade-long-bid-rigging-and-fraud-scheme.

16 Press release, Belgian Security Services Firm Agrees to Plead Guilty to Criminal Antitrust Conspiracy Affecting Department of Defense Procurement', available at https://www.justice.gov/opa/pr/belgian-security-services-firm-agrees-plead-guilty-criminal-antitrust-conspiracy-affecting; Press release, 'Belgian Security Services Company and Three Former Executives Indicted for Bid Rigging on U.S. Department ofDefense Contracts', available at https://www.justice.gov/opa/pr/belgian-security-services-company-and-three-former-executives-indicted-bid-rigging-us.

17 Press release, 'Former Security Services Executives Plead Guilty to Rigging Bids for Department of Defense Security Contracts', available at https://www.justice.gov/opa/pr/former-security-services-executives-plead-guilty-rigging-bids-department-defense-security.

18 Press release, 'Concrete Contractor Pleads Guilty to Rigging Bids for Public Contracts in Minnesota', available at https://www.justice.gov/opa/pr/concrete-contractor-pleads-guilty-rigging-bids-public-contracts-minnesota.

19 Press release, 'Senior Executives at Major Chicken Producers Indicted on Antitrust Charges', available at https://www.justice.gov/opa/pr/senior-executives-major-chicken-producers-indicted-antitrust-charges.

20 Press release, 'Six Additional Individuals Indicted On Antitrust Charges In Ongoing Broiler Chicken Investigation', available at https://www.justice.gov/opa/pr/six-additional-individuals-indicted-antitrust-charges-ongoing-broiler-chicken-investigation.

21 Press release, 'One of the Nation's Largest Chicken Producers Pleads Guilty to Price Fixing and is Sentenced to a $107 Million Criminal Fine', available at https://www.justice.gov/opa/pr/one-nation-s-largest-chicken-producers-pleads-guilty-price-fixing-and-sentenced-107-million; Press release, 'Broiler Chicken Producer Indicted for Price Fixing and Bid Rigging', available at https://www.justice.gov/opa/pr/broiler-chicken-producer-indicted-price-fixing-and-bid-rigging; Press release, 'Four Executives and Company Charged with Price Fixing in Ongoing Investigation into Broiler Chicken Industry', available at https://www.justice.gov/opa/pr/four-executives-and-company-charged-price-fixing-ongoing-investigation-broiler-chicken.

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

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

24 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).

25 FTC v. Facebook, No. 20-cv-3590 (D District of Columbia 11 January 2022).

26 New York v. Facebook, No. 20-cv-3589 (D District of Columbia 28 June 2021).

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

28 id.

29 id.

30 Press release, 'FTC, States to Recoup Millions in Relief for Victims Fleeced by 'Pharma Bro' Scheme to Illegally Monopolize Life-Saving Drug Daraprim', available at https://www.ftc.gov/news-events/press-releases/2021/12/ftc-states-recoup-millions-relief-victims-fleeced-pharma-bro.

31 FTC v. Shkreli, No. 20-cv-706 (SD New York 14 January 2022).

32 Press release, 'Justice Department Sues to Block Unprecedented Domestic Alliance Between American Airlines and JetBlue', available at https://www.justice.gov/opa/pr/justice-department-sues-block-unprecedented-domestic-alliance-between-american-airlines-and.

33 Press release, 'FTC Streamlines Consumer Protection and Competition Investigations in Eight Key Enforcement Areas to Enable Higher Caseload', available at https://www.ftc.gov/news-events/press-releases/2021/09/ftc-streamlines-investigations-in-eight-enforcement-areas.

34 Press release, 'FTC Launches Inquiry into Supply Chain Disruptions', available at https://www.ftc.gov/news-events/press-releases/2021/11/ftc-launches-inquiry-supply-chain-disruptions.

35 Holly Vedova, 'Adjusting merger review to deal with the surge in merger filings' (3 August 2021), available at https://www.ftc.gov/news-events/blogs/competition-matters/2021/08/adjusting-merger-review-deal-surge-merger-filings.

36 Complaint, US v. Bertelsmann, No. 21-cv-2886 (D District of Columbia 2 November 2021).

37 Complaint, US v. United States Sugar Corporation, No. 21-cv-1644 (D Delaware 23 November 2021).

38 Press release, 'FTC Sues to Block $40 Billion Semiconductor Chip Merger', available at https://www.ftc.gov/news-events/press-releases/2021/12/ftc-sues-block-40-billion-semiconductor-chip-merger.

39 Complaint, US v. Geisinger Health, No. 20-cv-1383 (MD Pennsylvania 5 August 2020).

40 Press release, 'Justice Department Sues To Block Geisinger Health's Transaction With Evangelical Community Hospital', available at https://www.justice.gov/opa/pr/justice-department-sues-block-geisinger-health-s-transaction-evangelical-community-hospital.

41 Press release, 'Justice Department Resolves Antitrust Case Against Leading Central Pennsylvania Health Care Providers', available at https://www.justice.gov/opa/pr/justice-department-resolves-antitrust-case-against-leading-central-pennsylvania-health-care.

42 Press release, 'FTC Challenges Hackensack Meridian Health, Inc.'s Proposed Acquisition of Competitor Englewood Healthcare Foundation', available at https://www.ftc.gov/news-events/press-releases/2020/12/ftc-challenges-hackensack-meridian-health-incs-proposed.

43 id.

44 FTC v. Hackensack Meridian Health, No. 20-cv-18140 (D New Jersey 4 August 2021).

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

46 Press release, 'FTC Challenges Consummated Merger of Companies that Market Body-Worn Camera Systems to Large Metropolitan Police Departments', available at https://www.ftc.gov/news-events/press-releases/2020/01/ftc-challenges-consummated-merger-companies-market-body-worn.

47 id.

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

49 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 https://www.ftc.gov/news-events/press-releases/2020/04/vievus-former-parent-company-safariland-agrees-settle-charges-it.

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

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

52 Press release, 'FTC Sues to Unwind Altria's $12.8 Billion Investment in Competitor JUUL', available at https://www.ftc.gov/news-events/press-releases/2020/04/ftc-sues-unwind-altrias-128-billion-investment-competitor-juul.

53 Complaint, In the Matter of Illumina, Inc., FTC Docket No. 9401 (30 March 2021).

54 Memorandum in Support of Ex Parte Application to Dismiss, FTC v. Illumina, Inc. (SD California 21 May 2021).

55 Press release, 'Illumina Acquires GRAIL to Accelerate Patient Access to Life-Saving Multi-Cancer Early-Detection Test', available at https://www.prnewswire.com/news-releases/illumina-acquires-grail-to-accelerate-patient-access-to-life-saving-multi-cancer-early-detection-test-301358390.html.

56 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 https://www.ftc.gov/news-events/press-releases/2021/01/statement-ian-conner-director-ftcs-bureau-competition-regarding.

57 Press release, 'Following Federal Trade Commission Staff Recommendation to Challenge Transaction, Tronox Holding plc. Abandons Proposed Acquisition of TiZir Titanium and Iron', available at https://www.ftc.gov/news-events/press-releases/2021/01/following-federal-trade-commission-staff-recommendation-challenge.

58 Press release, 'Statement of Acting Bureau of Competition Director Maribeth Petrizzi Regarding Decision of Pennsylvania Cement Producers Lehigh Cement Company LLC and Keystone Cement Company to Abandon Their Proposed Merger', available at https://www.ftc.gov/news-events/press-releases/2021/06/statement-acting-bureau-competition-director-maribeth-petrizzi.

59 Press release, 'Statement Regarding Berkshire Hathaway Energy's Termination of Acquisition of Dominion Energy, Inc.'s Questar Pipeline in Central Utah', available at https://www.ftc.gov/news-events/press-releases/2021/07/statement-regarding-berkshire-hathaway-energys-termination.

60 Press release, 'Expected Federal Trade Commission Opposition to Transaction Leads Great Outdoors Group, LLC and Rival Sportsman's Warehouse Holdings, Inc. to Abandon Plans for Proposed Merger', available at https://www.ftc.gov/news-events/press-releases/2021/12/expected-federal-trade-commission-opposition-transaction-leads.

61 Press release, 'Justice Department Sues to Block Aon's Acquisition of Willis Towers Watson', available at https://www.justice.gov/opa/pr/justice-department-sues-block-aon-s-acquisition-willis-towers-watson.

62 Press release, 'Justice Department Requires Republic Services to Divest Assets to Proceed with Santek Acquisition', available at https://www.justice.gov/opa/pr/justice-department-requires-republic-services-divest-assets-proceed-santek-acquisition.

63 Press release, 'Stone Canyon Required to Divest US Salt to Acquire Morton Salt', available at https://www.justice.gov/opa/pr/stone-canyon-required-divest-us-salt-acquire-morton-salt.

64 Press release, 'Justice Department Requires Divestitures in Huntington Bancshares Incorporated's Acquisition of TCF Financial Corporation', available at https://www.justice.gov/opa/pr/justice-department-requires-divestitures-huntington-bancshares-incorporated-s-acquisition-t-0; Press release, 'Justice Department Requires Divestitures in BancorpSouth Bank's Merger with Cadence Bank', available at https://www.justice.gov/opa/pr/justice-department-requires-divestitures-bancorpsouth-bank-s-merger-cadence-bank.

65 Press release, 'Justice Department Requires Substantial Divestitures in Zen-Noh Acquisition of Grain Elevators from Bunge to Protect American Farmers', available at https://www.justice.gov/opa/pr/justice-department-requires-substantial-divestitures-zen-noh-acquisition-grain-elevators.

66 Press release, 'Justice Department Requires Divestitures in Transaction between Global Industrial and Agricultural Equipment Component Manufacturers', available at https://www.justice.gov/opa/pr/justice-department-requires-divestitures-transaction-between-global-industrial-and.

67 Press release, 'Justice Department Requires Substantial Divestitures in Gray's Acquisition of Quincy to Protect American Consumers and Small Businesses', available at https://www.justice.gov/opa/pr/justice-department-requires-substantial-divestitures-gray-s-acquisition-quincy-protect.

68 Press release, 'Justice Department Requires Divestiture for General Shale to Proceed with Acquisition of Meridian Brick', available at https://www.justice.gov/opa/pr/justice-department-requires-divestiture-general-shale-proceed-acquisition-meridian-brick.

69 Press release, 'Justice Department Requires Divestitures in Neenah Enterprises Inc.'s Acquisition of US Foundry', available at https://www.justice.gov/opa/pr/justice-department-requires-divestitures-neenah-enterprises-inc-s-acquisition-us-foundry.

70 Press release, 'Justice Department Requires Divestitures in Lactalis's Acquisition of Kraft Heinz's Natural Cheese Business in the United States', available at https://www.justice.gov/opa/pr/justice-department-requires-divestitures-lactalis-s-acquisition-kraft-heinz-s-natural-cheese.

71 Press release, 'Justice Department Requires Substantial Divestitures and Waiver of a Non-Compete for S&P to Proceed with its Merger with IHS Markit', available at https://www.justice.gov/opa/pr/justice-department-requires-substantial-divestitures-and-waiver-non-compete-sp-proceed-its.

72 Press release, 'FTC Requires Divestitures as Condition of Casey's General Stores, Inc.'s Acquisition of Buck's Intermediate Holdings, LLC', available at https://www.ftc.gov/news-events/press-releases/2021/04/ftc-requires-divestitures-condition-caseys-general-stores-incs; Press release, 'FTC Order Protects Retail Fuel Customers Following Global Partners LP's Acquisition of Wheels', available at https://www.ftc.gov/news-events/press-releases/2021/12/ftc-order-protects-retail-fuel-customers-following-global.

73 Press release, 'FTC Requires Generic Drug Marketers ANI Pharmaceuticals, Inc. and Novitium Pharma LLC to Divest Rights and Assets to Two Generic Products as Condition of Merger', available at https://www.ftc.gov/news-events/press-releases/2021/11/ftc-requires-generic-drug-marketers-ani-pharmaceuticals-inc.

74 Press release, 'FTC Requires Northeast Supermarkets Price Chopper and Tops Market Corp. to Sell 12 Stores as a Condition of Merger', available at https://www.ftc.gov/news-events/press-releases/2021/11/ftc-requires-northeast-supermarkets-price-chopper-to-sell-12-stores.

75 Press release, 'FTC Imposes Strict Limits on DaVita, Inc.'s Future Mergers Following Proposed Acquisition of Utah Dialysis Clinics', available at https://www.ftc.gov/news-events/press-releases/2021/10/ftc-imposes-strict-limits-davita-incs-future-mergers-following.

76 Press release, 'FTC Orders the Divestiture of Hundreds of Retail Stores Following 7-Eleven, Inc.'s Anticompetitive $21 Billion Acquisition of the Speedway Retail Fuel Chain', available at https://www.ftc.gov/news-events/press-releases/2021/06/ftc-orders-divestiture-hundreds-retail-stores-following-7-eleven.

77 Statement of the Commission on Use or Prior Approval Provisions in Merger Orders (25 October 2021), available at https://www.ftc.gov/system/files/documents/public_statements/1597894/p859900priorapprovalstatement.pdf.

78 Press release, 'Justice Department and Federal Trade Commission Meet with Fellow G7 Enforcement Partners on Competition in Digital Markets', available at https://www.justice.gov/opa/pr/justice-department-and-federal-trade-commission-meet-fellow-g7-enforcement-partners.

79 Memorandum from Chair Lina M. Khan to Commission Staff and Commissioners (22 September 2021),available at https://www.ftc.gov/system/files/documents/public_statements/1596664/agency_priorities_memo_from_chair_lina_m_khan_9-22-21.pdf.

80 Noah Phillips [@NoahPhillips] 30 September 2021.

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