The first half of 2020 was a busy time for antitrust in the United States. The Department of Justice (DOJ) and the Federal Trade Commission (FTC) implemented expedited procedures for reviewing collaborations during the COVID-19 pandemic; investigations and enforcement actions have not meaningfully slowed; and the agencies have published new Vertical Merger Guidelines. Meanwhile, the House Judiciary Committee investigation into competition in the digital markets culminated in the first-ever virtual hearing with the CEOs of some of the world’s most valuable technology companies.  

This alert summarizes the main antitrust developments of the first half of the year. On September 22, members of the WilmerHale Antitrust Group will discuss these developments in a webinar that will also address how antitrust enforcement is likely to develop after the election in November. 

I. Key Developments in 2020

A. Reactions to COVID-19

Fast-track business reviews for COVID-19 related collaborations. In April, the DOJ and FTC jointly announced an expedited business review procedure for COVID-19-related competitor collaborations. Traditional business reviews can take several months,¹ but the agencies promise to conduct COVID-19 fast-track reviews within seven days.² The fast-track reviews apply to short-term collaborations intended to enable companies to better respond to COVID-19-related challenges. To date, the new review mechanism has resulted in three published Business Review Letters.  

• On April 4, the DOJ announced that it would not challenge an arrangement among a group of medical supplies distributors to collaborate in providing personal protective equipment.³
• On May 15, the DOJ announced that it would not challenge collaborative efforts between the National Pork Producers Council and the U.S. Department of Agriculture to respond to a pork supply shortage.⁴
• On July 23, the DOJ announced that it would not challenge a proposed collaboration among pharmaceutical companies to share information about developing antibody treatment for COVID-19.⁵   

But not all COVID-19 related conduct can expect flexible treatment. While the DOJ and FTC appear to be flexible in evaluating competitor collaborations genuinely designed to overcome challenges that the COVID-19 crisis presents, they have expressed concern that companies “may use [the crisis] as an opportunity to subvert competition or prey on vulnerable Americans.”⁶ The agencies have emphasized that they will enforce the antitrust laws against such conduct, and they have specifically called out employer collusion on salaries or other employment terms that could disadvantage frontline workers, such as doctors, nurses, first responders, and grocery store and pharmacy employees.⁷

B. Merger Enforcement

Pre-merger notifications under the HSR Act have declined significantly during the first half of the year,⁸ but merger enforcement and policy initiatives have been alive and well:

Merger Challenges. The DOJ and FTC have maintained an active merger enforcement docket over the last six months. Since January, the FTC alone has challenged five transactions, and seven more were abandoned during close Commission scrutiny.⁹ The DOJ, for its part, challenged six mergers.¹⁰ The main case developments are reviewed below.  

New Vertical Merger Guidelines. The agencies released their long-awaited update of the Vertical Merger Guidelines.¹¹ The Guidelines were last updated in 1984. The new Guidelines reflect an evolution towards treating many vertical mergers as procompetitive, but they also articulate various theories under which vertical mergers can harm competition depending on the particular facts. 

C. Criminal Enforcement

Generic Drug Price Fixing Investigations. The DOJ has continued its prosecution of generic pharmaceutical companies, filing seven new cases (three against companies and four against individuals) in connection with its investigation into price fixing for generic drugs. In its case against Sandoz, the DOJ simultaneously filed charges and entered into a deferred prosecution agreement (DPA) under which Sandoz agreed to pay $195 million in criminal penalties—the largest criminal penalty in history for a domestic antitrust violation.¹²

Other Enforcement Actions. The DOJ brought criminal actions against Florida Cancer Specialist & Research Institute LLC for agreeing with a rival oncology group not to compete in providing chemotherapy in certain areas in Florida,¹³ and against Detloff Marketing and Asset Management Inc., a real estate company, for a kickback scheme in connection with foreclosed properties.¹⁴

In addition, two former executives in the generic pharmaceutical industry¹⁵ were indicted in connection with the pharmaceutical investigations.¹⁶ The former CEO and President of Bumble Bee Foods was sentenced to 40 months in jail and a criminal fine of $100,000 for his involvement in a three-year antitrust conspiracy to fix prices of canned tuna.¹⁷   

D. Commissioner Disagreement at the FTC

The first half of the year saw five FTC votes with dissenting views from one or both of the Democratic Commissioners, most in the context of merger settlements.¹⁸ The FTC also split 3-2 in its decision to settle charges against “rent-to-own” companies engaged in an anticompetitive market allocation scheme.¹⁹ Specific objections vary by case, but published dissents generally advocate for stronger antitrust enforcement, including in vertical mergers; question the FTC’s enforcement approach in the pharmaceutical industry; raise concerns about whether the FTC thoroughly investigated all potential theories of competitive harm; and express discomfort about the efficacy of  proposed divestiture remedies.²⁰ The Republican commissioners have typically issued their own strongly-worded statements, often asserting that the Democratic Commissioners’ concerns were theoretical and not grounded in the particular facts of the case.  

E. Congressional Hearings

On June 24, 2020, the U.S. House Judiciary Committee held a hearing on alleged political interference and threats to prosecutorial independence at the DOJ. The witnesses included a DOJ whistleblower, John Elias, who testified that the DOJ’s investigations into the cannabis industry and California emissions standards were motivated by the Trump Administration and Attorney General William Barr’s political preferences. In response, Assistant Attorney General for the Antitrust Division, Makan Delrahim, wrote to the House Judiciary Committee asserting that Mr. Elias’s testimony “is misleading and lacks critical facts.”²¹

Big Tech investigations. On July 29, 2020, the CEOs of four of the largest tech companies testified virtually before the House Judiciary Committee’s Subcommittee on Antitrust. House Democrats focused on whether the companies had achieved dominance through anticompetitive practices. House Republicans spent less time focused on antitrust issues, but raised concerns about purported bias against conservative viewpoints and its potential impact on the upcoming election. Chairman David Cicilline (D-RI) has said that he expects the Subcommittee to issue a report on the investigation’s findings by the end of August or early September.  

II. Notable Cases 

• Sabre/Farelogix: On August 20, 2019, DOJ challenged the proposed acquisition of Farelogix by Sabre, alleging that it would “eliminate a disruptive competitor from the market for airline booking services.”²² Judge Stark in the District Court for the District of Delaware disagreed. Among other things, the court found that while Sabre operates a two-sided platform for airlines and travel agents, Farelogix offers technology that enables direct connections between the airlines and the agents. Relying on the Supreme Court’s recent decision in Ohio v. American Express Co., 138 S.Ct. 2274 (2018), the court held that the two companies do not compete, as a matter of law, because two-sided platforms can only compete with other two-sided platforms.²³ It reasoned that that the companies were not competitors because Sabre was a two-sided platform facilitating transactions between airlines and travel agencies, whereas Farelogix only provides a service to airlines.²⁴ The DOJ immediately filed an appeal, arguing among other things that the District Court’s ruling “could have an outsized effect on cases involving competition in the digital economy, where it is not uncommon for multi-sided platforms to face competition from one-sided rivals.”²⁵
  Sabre and Farelogix nevertheless terminated their proposed merger after the UK Competition and Markets Authority moved to block the transaction.²⁶ On July 20, 2020, the Third Circuit vacated the district court’s decision, holding that the ruling was moot because the challenged merger had been abandoned.²⁷ However, the Third Circuit expressed “no opinion on the merits of the parties’ dispute before the District Court” and observed that the order “should not be construed as detracting from the persuasive force of the District Court’s decision.”²⁸    

• Edgewell Personal Care Co./Harry’s Inc.: On February 3, the FTC challenged the proposed acquisition by Edgewell, a leading supplier of men’s shaving equipment, of Harry’s, Inc., a recent and primarily direct-to-consumer supplier of shaving products. Although the acquisition would have added only a low-single digit market share to Edgewell’s position, the Commission challenged the acquisition on the alleged basis that it would remove a promising incipient competitor and re-enforce a duopoly in the relevant market. The parties abandoned the deal one week after the Commission filed a complaint.²⁹  

• T-Mobile/Sprint: On February 11, a federal court in the Southern District of New York denied an injunction brought by several state attorneys general to block T-Mobile’s acquisition of Sprint.³⁰ The court found that the DOJ’s remedy requiring T-Mobile to divest Sprint’s prepaid businesses to Dish, made Dish “well poised to become a fourth [mobile network operator] in the market” and allow it to replace Sprint’s competitive impact.³¹ Notably, in reaching its decision, the court relied heavily on the testimonies of fact witnesses in comparison to expert witnesses, finding that what happens post-merger is “not necessarily guided by theoretical forces or mathematical models.”³²  

• Novelis, Inc./Aleris Corp.: On March 9, the DOJ won in arbitration against Novelis, Inc., an aluminum company, which was ordered to divest the automotive body sheet operations of Aleris Corporation, a company it sought to acquire.³³ This was the first time the DOJ has used binding arbitration to resolve an antitrust dispute. The arbitration focused on a single issue, whether aluminum auto body sheet constitutes a relevant product market, as the DOJ alleged. The arbitrator found that it did, and under the arbitration agreement the merging parties had committed to the divestiture that was the result of the arbitration.

• Altria Group, Inc./JUUL Labs, Inc.: On April 1, the FTC voted to seek to unwind Altria’s acquisition of a 35% stake in JUUL, a seller of e-cigarettes, representing another in a series of recent agency challenges to consummated acquisitions.³⁴ The complaint alleges that once JUUL became the market leader in 2016, Altria abandoned its own e-cigarette business and acquired a 35% ownership to become JUUL’s largest shareholder, in violation of Section 1 of the Sherman Act and Section 7 of the Clayton Act. The case is pending before the Administrative Law Judge.

• AbbVie/Allergan: On May 5, the FTC cleared the $63 billion acquisition by AbbVie, Inc. of Allergan plc subject to divestiture of two drug treatments for exocrine pancreatic insufficiency and a return to a former partner of Allergan’s rights and assets related to a third drug treatment used to treat Crohn’s disease and ulcerative colitis.³⁵ The Commission split 3-2 in voting to approve the divestiture. Commissioner Chopra issued a strongly-worded dissent calling the divestiture a “troubling outcome” and asserting that the divestiture buyers were ill-equipped to replace the lost competition.³⁶   

• Fourth Circuit Review of Steves and Sons Inc./Jeld-Wen Inc.: On May 29, the Fourth Circuit heard oral arguments in an appeal from a district court decision in favor of a private plaintiff’s challenge to a consummated merger. This is the first time that a U.S. court has ordered a divestiture in a private merger challenge. The DOJ filed an amicus brief supporting the plaintiff, urging the court not to draw any inference from the fact that the DOJ had previously closed two investigations of the then-pending merger.³⁷ The appeal remains pending, but the parties reportedly entered into a partial settlement agreement whose terms were confidential.³⁸  

• Alimentation Couche-Tard Inc./CrossAmerica Partners LP: On July 6, an operator of retail gas stations and convenience stores agreed to pay $3.5 million in civil penalties to settle the FTC’s allegations that it violated the Commission’s previous 2018 order, which had required divestitures of 10 retail fuel stations in Minnesota and Wisconsin to Commission-approved buyers.³⁹ The FTC alleged the operator failed to timely divest fuel stations and breached its obligations to keep the FTC accurately informed about the progress of its efforts to divest the stations. 

• London Stock Exchange Group (LSEG) and Refinitiv: On July 31, the DOJ determined that it will not challenge LSEG’s acquisition of Refinitiv because the merger was “unlikely to result in harm to competition [f]or American consumers.”⁴⁰ LSEG agreed to acquire Refinitiv for $27 billion in August 2019. The DOJ conducted an eight-month investigation, applying both the Horizontal and Vertical Merger Guidelines.⁴¹ The horizontal analysis focused on areas where LSEG and Refinitiv offer similar products, such as financial indexes. In its analysis of vertical aspects of the transaction, “the division considered how the proposed transaction could affect the ability and incentives of LSEG and Refinitiv to change the licensing terms for proprietary data feeds used by their rivals to supply products that compete against similar products from LSEG and Refinitiv.”⁴² The case is noteworthy in part because Antitrust Division statements about decisions not to challenge transactions are rare.   

III. Looking Ahead

The remainder of 2020 will undoubtedly bring further significant antitrust developments, including continued focus on antitrust among non-specialist policymakers and major investigations and cases moving forward. Notably, the Supreme Court will review whether the FTC has authority to seek restitution as a remedy under the FTC Act (which authorizes injunctive relief but is silent as to restitution).⁴³ The Supreme Court granted certiorari to resolve a federal circuit court split on this issue three weeks after deciding Liu v. Securities and Exchange Commission, in which the Court held that disgorgement is available to the Securities and Exchange Commission in actions under the securities laws.⁴⁴