WHAT TO EXPECT IN 2020 MERGER
ENFORCEMENT: TRENDS AND
DEVELOPMENTS FROM 2019
Michael B. Bernstein, Francesca M. Pisano, Dylan Young, Florence Bryan,
Tommy La Voy, and Lori Taubman
arnoldporter.com
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Overview _______________________________________ 3
Key Issues for 2020 ______________________________ 4
Litigations and Challenges to Deals ________________ 7
Numerous Transactions Were Abandoned
in the Face of a Challenge ______________________7
FTC Found Success In Administrative Actions _____9
Appellate Courts Upheld Lower Court
Federal Court Decisions ________________________11
Additional Challenges Pending in Federal Court ____ 12
DOJ’s Use of Arbitration in Merger Litigation ________ 13
Enforcement by State Attorneys General ___________ 14
Notable Transactions Closed without Conditions _____ 16
Consent Decrees ________________________________ 18
Tunney Act Review _____________________________ 18
Vertical Mergers _______________________________ 19
Up-Front Buyers _______________________________ 20
Nascent & Future Competition ___________________ 21
Defense Sector & Security Industry _______________ 22
Local Markets _________________________________ 23
Bank Merger Review by DOJ and the Federal Reserve __ 23
Non-Compete Clauses__________________________24
Enforcement of Consent Decrees __________________26
Enforcement of HSR Violations ____________________ 27
Private Merger Litigation __________________________ 29
Table of Contents
© Arnold & Porter Kaye Scholer LLP 2020. All Rights Reserved.
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Overview
The U.S. antitrust authorities remained active and aggressive in 2019—challenging more transactions
than in 2018.
* Includes all completed merger-related court actions by FTC and DOJ in federal district court (both litigated
complaints and consent decrees), federal appellate court, and in FTC administrative proceedings, as well as
mergers abandoned under threat of litigation. Excludes litigations pending at the end of the year (including Post
Holdings/Tree House
Foods), HSR violations, consent decree enforcement, and challenges pursued by other
enforcers or private parties.
* Includes litigated mergers and mergers abandoned under threat of litigation. Excludes litigations pending at the
end of the year (including Post Holdings/Tree House Foods), HSR violations, consent decree enforcement, and
challenges pursued by other enforcers or private parties.
3
US 165017499v22
I. Overview & Key Issues for 2020
The U.S. antitrust authorities remained active and aggressive in 2019—challenging more
transactions than in 2018.
*Includes all completed merger-related court actions by FTC and DOJ in federal district court (both litigated
complaints and consent decrees), federal appellate court, and in FTC administrative proceedings, as well as mergers
abandoned under threat of litigation. Excludes litigations pending at the end of the year (including Post
Holdings/Tree House Foods), HSR violations, consent decree enforcement, and challenges pursued by other
enforcers or private parties.
*Includes litigated mergers and mergers abandoned under threat of litigation. Excludes litigations pending at the
end of the year (including Post Holdings/Tree House Foods), HSR violations, consent decree enforcement, and
challenges pursued by other enforcers or private parties.
9
15
24
12
14
26
0
5
10
15
20
25
30
DOJ FTC Total
Figure 1. Formal Actions by US Federal Antitrust Authorities*
2018 2019
2
5
7
3
6
9
0
2
4
6
8
10
DOJ FTC Total
Figure 2. Court Challenges by US Federal Antitrust Authorities*
2018 2019
3
US 165017499v22
I. Overview & Key Issues for 2020
The U.S. antitrust authorities remained active and aggressive in 2019—challenging more
transactions than in 2018.
*Includes all completed merger-related court actions by FTC and DOJ in federal district court (both litigated
complaints and consent decrees), federal appellate court, and in FTC administrative proceedings, as well as mergers
abandoned under threat of litigation. Excludes litigations pending at the end of the year (including Post
Holdings/Tree House Foods), HSR violations, consent decree enforcement, and challenges pursued by other
enforcers or private parties.
*Includes litigated mergers and mergers abandoned under threat of litigation. Excludes litigations pending at the
end of the year (including Post Holdings/Tree House Foods), HSR violations, consent decree enforcement, and
challenges pursued by other enforcers or private parties.
9
15
24
12
14
26
0
5
10
15
20
25
30
DOJ FTC Total
Figure 1. Formal Actions by US Federal Antitrust Authorities*
2018 2019
2
5
7
3
6
9
0
2
4
6
8
10
DOJ FTC Total
Figure 2. Court Challenges by US Federal Antitrust Authorities*
2018 2019
| 4
The authorities have already signaled that aggressive antitrust enforcement is likely to continue
in 2020, with a number of challenges already within the rst few weeks of the new year.
1
In the face
of public questioning of whether there has been sucient enforcement in technology transactions
involving nascent competitors, FTC announced an industry-wide study under the FTC’s study
authority into the acquisition strategies of some of the largest technology companies.
2
In this enforcement climate, it is even more critical to understand enforcement priorities and key issues
being considered by the antitrust authorities in order to position a transaction for the best possible
chance at success. This past year in antitrust merger enforcement oers a number of key insights:
1. Increased Activity of State Attorneys General in Merger Review. State attorneys general
may—and do—challenge transactions. Although it is not uncommon for state AGs to challenge
transactions alongside federal antitrust authorities, the states have become increasingly active.
As they demonstrated in Sprint/T-Mobile and United Health/DaVita, they are not afraid to
challenge a transaction that has already been cleared by the federal antitrust authorities.
2. FTC Commissioners Rethinking Certain Traditional Views. Substantively, a number of FTC
Commissioners appear to be questioning certain aspects of traditional merger analysis. For
example, Commissioner Chopra, in Staples/Essendant and United Health/DaVita, continued to
express concerns with the eectiveness of divestitures involving private equity buyers. Similarly,
in Bristol Myers/Celgene, Commissioners Slaughter and Chopra argued for a more expansive
view of the merger’s competitive eects to focus on industry-wide competitive dynamics and
innovation incentives, and critiqued the traditional analysis of focusing on individual product
overlaps. And, in Nexus/Generation Pipeline, although all the Commissioners agreed on the
decision, Commissioners Wilson, Chopra, and Slaughter each led separate statements to
debate the general competitive threat of non-compete clauses.
Key Issues for 2020
| 5
3. FTC’s Continued Preference for Administrative Proceedings Over Federal Court Where
Available. Under the Federal Trade Commission Act, FTC has the ability to challenge a transaction
in an administrative proceeding, and to go to federal court either to obtain a preliminary injunction
pending that administrative proceeding or a permanent injunction. Typically, FTC les simultaneously
in both fora. This year, when there was no need to seek a preliminary injunction because there was
no imminent threat that the parties would consummate the transaction, FTC led rst (and in one
case only) in the administrative forum. In Otto Bock/Freedom Innovations, FTC challenged a
consummated transaction, and in Tronox/Cristal it did not le a simultaneous federal action where
EU merger approval was pending. However, early in 2020, one defendant in an FTC administrative
action has challenged the forum itself on constitutional grounds,
3
and we will continue to monitor
this case.
4. Potential for More Active Involvement By Courts in DOJ Consent Decrees. Settlements with
DOJ to resolve concerns related to transactions are subject to the Tunney Act, which empowers
courts to review DOJ consent decrees to ensure that the settlement is in the public interest.
Historically, courts have approved consent decrees without signicant scrutiny. This year, however,
in CVS/Aetna, Judge Leon in the U.S. District Court for the District of Columbia stated “no court
should rubberstamp a consent decree” just because the government has requested it, and held an
evidentiary hearing where the merging parties, government, and third-party amicus lers were per-
mitted to make arguments. Although Judge Leon eventually approved the settlement, Judge Leon’s
handling of the CVS/Aetna consent decree may lead some judges to take more active roles in the
Tunney Act process.
5. DOJ’s Process Changes. In 2018, DOJ announced that it was attempting to streamline and speed
the merger review process by concluding investigations within six months of an Hart-Scott-Rodino
(HSR) ling.
4
Assistant Attorney General Delrahim has stated that DOJ is meeting its goal of completing
investigations within six months, with the average time from an HSR ling to DOJ notifying the
parties of its position being only 5.4 months.
5
However, because the timeline ends when DOJ
noties parties of its position, the actual time to conclusion of a matter is much longer. In another
process change, for the rst time, DOJ employed the Administrative Dispute Resolution Act of 1996,
referring the core issue of market denition to arbitration where the parties agreed the result would
be dispositive in the case. While DOJ has not used this procedure previously and has not employed
it since, parties should consider whether their case might be appropriate for such treatment.
6. Continued Monitoring and Enforcement of HSR Reporting Requirements. DOJ and FTC continue
to take HSR compliance very seriously. HSR rules require that companies le a notication with the
antitrust authorities and wait a statutory period before closing certain transactions. Failures to report
reportable transactions and observe the statutory waiting period can be costly. The enforcement
actions brought against Canon and Toshiba this past year serve as an important reminder that FTC
and DOJ are monitoring transactions for both substance and reportability.
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7. DOJRearmedItsCommitmenttoEnforcingConsentDecrees. Assistant Attorney General
Makan Delrahim’s statements in 2018 emphasized the enforcement of existing consent decrees
and DOJ made changes to consent decree language to reduce the diculty of enforcing the
decrees. In 2019, DOJ brought an action against Live Nation alleging it violated the 2010 consent
decree regarding the Ticketmaster acquisitions, which resulted in a new settlement that claried the
conditions that apply, extended the consent decree for an additional ve years, and included an
automatic ne mechanism going forward.
8. Potential for Private Litigation. While it likely will remain rare, private plaintis can and occasionally
do bring their own challenges to transactions. In one such private case, JELD-WEN/Craftmaster,
DOJ led an amicus brief defending the position that private challenges to a consummated merger
should not be uniformly prohibited. This case is still on appeal at the Fourth Circuit.
9. Focus on Nascent Competition and Start-Up Acquisitions in Technology Sector. Jerey
Wilder, DOJ’s Acting DAAG for Economics, indicated that concerns related to nascent competition
and acquisitions of a start-ups, by an incumbent platform company may be a particular focus of
scrutiny in the technology sector.
6
This statement parallels a year of increased enforcement
attention focused on the technology sector. DOJ, FTC, and a bipartisan group of state AGs
have opened broad investigations into digital and technology companies’ conduct and
acquisitions.
7
FTC in particular has initiated a retrospective review of transactions by ve large
technology companies.
8
Moreover, enforcers are also suggesting that the agencies may
increasingly use Section 2 of the Sherman Act to investigate and challenge serial acquisitions
of nascent competitors in platform industries—i.e., analyze mergers as part of a broader pattern
of conduct, as opposed to reviewing each transaction in isolation.
9
10. Proposals for Merger Enforcement Reform. As the 2020 election approaches, politicians have
taken aim at antitrust policy and in particular have suggested reforms to merger enforcement. In
addition to rhetoric from a number of candidates, such as Senators Elizabeth Warren and Bernie
Sanders, Democratic candidate and Senator Amy Klobuchar, who is currently the Ranking Member
of the Antitrust Subcommittee, submitted legislation to modify the Clayton Act to allow transactions to be
blocked if they “materially lessen competition,”
10
which is intended to be a lower requirement than
the current “substantially lessen competition” standard. Senator Klobuchar’s proposal would also
shift the burden of proof for what she calls “mega-mergers”
11
to require that the merging parties
prove their transactions do not harm competition.
12
The proposed legislation also would modify the
Clayton Act to prohibit transactions that tend to create a monopsony in a specic line of commerce.
Senator Klobuchar has introduced another bill to authorize civil monetary penalties for Section 2
violations.
13
The penalties could be as high as 15% of the defendant’s total US revenues or 30%
of their revenues in the relevant markets.
14
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Litigations and Challenges to Deals
Although most transactions are cleared without challenge, federal and state enforcers have demonstrated
a willingness to go to court to prevent a transaction they view as anticompetitive. In 2019, most of the
challenged cases featured traditional horizontal concerns between competitors, but DOJ did pursue
one vertical transaction on appeal—AT&T/Time Warner.
Numerous Transactions Were Abandoned in the Face of a Challenge
FTC and DOJ challenged a number of transactions, resulting in the parties abandoning the transaction
before reaching a court decision. In fact, no federal challenges made it to trial in federal court in 2019.
Securus Technologies/Inmate Calling Solutions
On June 12, 2018, Securus Technologies, majority owned by Platinum Equity LLC, proposed to acquire
Inmate Calling Solutions from HIG Capital LLC.
15
Both companies provide telecommunications services
for inmates. DOJ stated “Securus and ICS have a history of competing aggressively to win state and
local contracts by oering better nancial terms, lower calling rates, and more innovative technology
and services. This merger would have eliminated that competition, plain and simple.”
16
The transaction
was also subject to review by the Federal Communications Commission (FCC), where FCC
Chairman Ajit Pai stated that the “deal posed signicant competitive concerns and would not be in
the public interest.”
17
On April 3, 2019, DOJ announced that the parties abandoned their transaction
after both DOJ and FCC independently informed them of their concerns.
18
Republic National/Breakthru Beverage
On November 20, 2017, Republic National Distributing Company, LLC, and Breakthru Beverage Group,
LLC, announced their proposed transaction to combine Republic, a distributor and broker of premium
wine and spirits, with Breakthru, a distributor and broker of beer, wine, and spirits.
19
On April 5, 2019,
after a protracted FTC investigation, the parties decided to abandon their proposed transaction.
20
In a
closing statement on the matter, FTC stated that “this transaction likely would have resulted in higher
prices and diminished service in the distribution of wine and spirits in several states.”
21
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QuadGraphics/LSC Communications
On October 31, 2018, Quad/Graphics, Inc. (Quad) agreed to acquire LSC Communications, Inc. (LSC) for
approximately $1.4 billion.
22
Both companies oer printing services for magazines, catalogs, and books, as
well as related services. DOJ led a complaint challenging the transaction on June 20, 2019 that alleged
the transaction would eliminate head-to-head competition between LSC and Quad in printing services for
magazines, catalogs, education books, and one-color trade books.
23
DOJ alleged that “Quad and LSC
dominate the magazine, catalog, and book printing services markets, and each views the other as its
primary, and often only, competitor.”
24
Quad and LSC argued that the transaction would allow the combined
company to service customers more eciently, especially in the face of digital competition and the
“ongoing media disruption” of the printing industry.
25
However, on July 23, 2019, Quad and LSC announced
they were abandoning the proposed transaction, citing the cost to continue in the lawsuit and the Court’s
litigation schedule, which would not result in a decision until 2020.
26
Fidelity National Financial/Stewart Information Services Corporation
On March 19, 2018, Fidelity National Financial, Inc. announced an agreement to acquire Stewart
Information Services Corporation.
28
Fidelity and Stewart are title insurance companies, which underwrite
residential and commercial real estate transactions and provide title information services.
29
FTC issued
an administrative complaint on September 6, 2019, and simultaneously led for a temporary restraining
order and preliminary injunction to stop the transaction.
30
FTC argued that Fidelity and Stewart are two of
only four title insurance underwriters for large commercial transactions,
31
and that the transaction would
reduce competition among title insurance underwriters for large commercial transactions in 45 states and
the District of Columbia.
32
FTC also alleged the transaction would result in increased prices or decreased
quality in the provision of title information services in at least 14 local markets.
33
On September 10, 2019,
the parties announced the decision to terminate the proposed merger in response to FTC’s complaint.
34
Illumina/PacBio
On December 17, 2019, FTC issued an administrative complaint challenging Illumina Inc.’s proposed
acquisition of Pacic Biosciences of California (PacBio).
35
The two companies, which oer DNA
sequencing systems to scientists, announced the transaction on November 1, 2018.
36
In its complaint,
FTC alleged that Illumina has a monopoly in U.S. and global markets for “next-generation sequencing”
(NGS) technology that enables researchers to quickly and accurately identify the order of component
blocks in a DNA sample.
37
FTC explained that PacBio “has managed to gain a foothold in the NGS
market” by oering a sequencing system that, though currently slower and more expensive than
Illumina’s system, is preferable to some customers because it can read longer DNA sequences.
38
The parties argued that the acquisition would allow them to combine PacBio’s long-read sequencing
capabilities with Illumina’s short-read sequencing systems “to provide integrated workows and novel
innovations that bring together the best of both technologies to help researchers advance their
discoveries faster and clinicians oer new tests economically.”
39
However, FTC alleged that the
transaction would allow Illumina to maintain its monopoly power by eliminating the “increasing
competitive threat” posed by PacBio.
40
FTC relied on Illumina’s documents, which showed Illumina
monitoring PacBio, to demonstrate that Illumina expected PacBio to become a close competitor as
it improved its product and decreased costs.
41
On January 2, 2020, Illumina and PacBio jointly
announced that they decided to end the proposed merger.
42
Under the purchase agreement,
Illumina paid PacBio a $98 million termination fee.
43
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Post Holdings/TreeHouse Foods
On May 2, 2019, TreeHouse Foods, a manufacturer of private label packaged foods and beverages,
announced its agreement to sell its private label ready-to-eat (RTE) cereal business to Post Holdings,
a consumer packaged goods holding company that also was a manufacturer of private label RTE
cereal.
44
FTC led suit seeking a temporary restraining order and preliminary injunction in the United
States District Court for the District of Columbia, as well as an administrative complaint on December
19, 2019 to enjoin the transaction.
45
FTC alleged that Post and TreeHouse are two of only three signicant
manufacturers of private label RTE cereal in the U.S.
46
FTC further alleged the proposed transaction
would lead to lower-quality and higher-priced private label RTE cereal because the sale would eliminate
the head-to-head competition between Post and TreeHouse, which FTC characterized as the rst and
second choices RTE manufacturers for most retailers.
47
The companies argued that the transaction
would lead to substantial cost savings and other eciencies that would provide stronger competition
by helping Post “compete more aggressively” in the broader RTE cereal category, which in the parties’
view included branded and private label cereals.
48
The companies further argued that the RTE cereal
market is already highly competitive and currently “declining as a category as consumers move to
other breakfast options.”
49
FTC, however, alleged that although private label RTE cereals oer
“equivalents” or “emulations” of the national brand-name RTE cereals, private label RTE cereals are
not interchangeable with branded RTE cereals due to signicant price dierences and other unique
benets to retailers gained only by selling private label RTE cereals, such as promotion of the retailer’s
brand.
50
The district court granted a temporary restraining order on December 27, 2019.
51
On January
13, 2020, with an administrative trial scheduled for May 27, 2020,
52
the parties announced that they
had abandoned the transaction.
53
FTC Found Success in Administrative Actions
Under the Federal Trade Commission Act, Congress has authorized FTC to challenge a transaction
before an FTC Administrative Law Judge (ALJ), whose decisions are reviewed by the full panel of FTC
Commissioners. Therefore, FTC has the ability to bring challenges in either (or both) an administrative
proceeding or federal district court, depending on the circumstances of the given case. DOJ, on the
other hand, has the ability to bring cases only in federal district court. Although the administrative venue
operates under somewhat dierent procedures than a federal district court, and some have argued that
this can create substantive divergences in adjudication, the same substantive antitrust principles apply
in both forums.
Otto Bock/Freedom Innovations
FTC led an administrative complaint on December 20, 2017 to challenge the acquisition of Freedom
Innovations by Otto Bock, which closed in September 2017.
54
FTC did not le for a preliminary
injunction because the transaction was already consummated. After an administrative trial, the
ALJ decided in favor of FTC on May 7, 2019.
55
On November 6, 2019, FTC Commissioners
unanimously upheld the ALJ’s decision requiring Otto Bock to undo its acquisition of Freedom
Innovations, citing concerns that the transaction would reduce competition in the U.S. market for
microprocessor prosthetic knees.
56
The transaction sought to combine Otto Bock and Freedom Innovations, two manufacturers of
lower-limb prosthetics used by amputees.
57
The parties argued that the market for microprocessor
| 10
prosthetic knees would remain competitive, in part because (1) there were a number of other
microprocessor prosthetic knee competitors with the ability to expand in the future,
58
and (2) the
insurance reimbursement system facilitates substitution among microprocessor prosthetic knee
providers and serves as a “price cap.”
59
The parties also argued that, but for the merger, Freedom’s
nancial diculties would have caused the company to fail.
60
Finally, the parties argued that any
alleged competitive harm would be resolved by a divestiture they proposed after discovery concluded
in the administrative trial.
61
FTC was not satised with the divestiture proposal in part because it could not resolve competitive harm
that occurred between the consummation and the date of divestiture, despite the parties’ insistence that
the businesses had been held separate in the interim.
62
The Commission, moreover, found that the
merger already had produced anticompetitive eects, even with a hold-separate agreement in place,
citing internal company documents that suggested the parties sought to decrease marketing and
promotions against one another and a product slated to be upgraded was placed “on hold.”
63
The
Commission concluded that Otto Bock’s proposed divestiture of only Freedom’s microprocessor
prosthetic knee assets would not resolve the alleged competitive harms, because a divestiture buyer
would need other foot products to compete as eectively as Freedom Innovations.
64
Like the ALJ, the
Commission found that Freedom’s nancial status improved in late 2016 and early 2017 and the
company failed to consider viable alternative options for acquisition rather than focusing on the highest
possible oer.
65
Therefore, the Commission ordered Otto Bock to divest all of Freedom’s assets,
including some that did not overlap, because Freedom often sold microprocessor prosthetic knee
and foot products as a package, and FTC concluded that the divestiture buyer would need to sell a
similar portfolio to be competitive.
66
On December 30, 2019, Otto Bock led a petition for review of
FTC’s ruling in the D.C. Circuit.
67
FTC and Otto Bock engaged in settlement discussions after FTC’s
November divestiture order,
68
and, on January 29, 2020, the D.C. Circuit granted the parties’ joint
motion for a 30-day abeyance to allow the parties to continue those discussions.
69
Tronox/Cristal
On December 5, 2017, FTC led an administrative action to block Tronox’s proposed acquisition
of Cristal.
70
Originally announced on February 21, 2017, the deal sought to combine two titanium
dioxide (TiO2) producers.
71
FTC alleged that the transaction would combine two of the three largest
manufacturers of TiO2, increasing Tronox’s incentive and ability to restrict the supply of TiO2 to the
market and enhancing the likelihood of coordinated eects among the remaining providers.
72
In January
2018, Tronox sought, unsuccessfully, to move the litigation to federal court.
73
The transaction also was
under review in the European Union, which prevented it from closing; therefore, FTC did not le for a
preliminary injunction at the outset. However, on July 3, 2018, the European Union cleared the merger
with conditions.
74
At that point, FTC sought a preliminary injunction in federal district court to prevent
the parties from consummating the transaction prior to the resolution of the administrative suit.
75
On
September 12, 2018, the district court found that FTC showed the proposed transaction would likely
substantially lessen competition in the North American market for chloride-process TiO2.
76
Despite the
parties’ arguments that the post-merger company would face signicant competition from large Chinese
entrants and that the merger created signicant synergies and eciencies, the District Court granted a
preliminary injunction.
77
In the administrative proceedings, the ALJ issued an initial decision to
permanently enjoin the acquisition on December 14, 2018.
78
Following that decision, the parties agreed
| 11
to divest two manufacturing plants along with related intellectual property, an R&D center, and an option
to use licensed IP outside the United States.
79
The nal consent order was issued on May 28, 2019,
80
and the parties announced the closing of their transaction on April 10, 2019.
81
Appellate Courts Upheld Lower Court Federal Court Decisions
While cases were still pending in federal court as of the end of 2019, the only merger-related cases
decided in federal court this year were decided on appeal: (1) the Eighth Circuit upheld FTC’s victory
enjoining a transaction between two physician groups in North Dakota and (2) the D.C. Circuit armed
the district court’s denial of DOJ’s challenge to AT&T’s acquisition of Time Warner.
Sanford Health/Mid Dakota
On June 13, 2019, the Eighth Circuit upheld the District of North Dakota’s decision to preliminarily
enjoin a merger between Sanford Health and Mid Dakota Clinic (MDC), two physician groups in North
Dakota.
82
Litigation commenced almost two years earlier, when FTC and the Attorney General of North
Dakota led for a preliminary injunction pending an administrative proceeding.
83
FTC alleged that
Sanford Health and MDC were each other’s closest rivals in the four-county Bismarck-Mandan region
of North Dakota and that the merger would create a physician group with at least 75% to 85% share in
the provision of adult primary care, physician care, pediatric services, and OB/GYN services, as well
as a monopoly in general surgery.
84
On December 13, 2017, the District Court granted FTC’s request
for a preliminary injunction,
85
and the parties subsequently appealed the order.
86
On June 13, 2019, the
Eighth Circuit issued an opinion upholding the District Court’s ndings.
87
Although the merging parties
argued, in part, that any post-merger price increases could be defeated by the “dominant buyer”
in the geographic area (Blue Cross Blue Shield of North Dakota), the Eighth Circuit agreed with the
District Court’s rejection of this argument, citing contrary testimony from Blue Cross representatives
and the history of contract negotiations between the parties.
88
Further, the Eighth Circuit agreed with
the District Court that four of ve anticipated transaction eciencies were not merger-specic,
crediting FTC’s expert testimony that many of the parties’ claimed eciencies could be achieved
without the transaction.
89
On July 9, 2019, FTC announced that the parties had abandoned
the transaction.
90
AT&T/Time Warner
On February 26, 2019, the D.C. Circuit armed the D.C. District’s denial of a permanent injunction
against AT&T’s proposed acquisition of Time Warner.
91
The transaction combined the distribution
assets of AT&T/DirecTV with the programming assets of Time Warner.
92
The district court ruled in favor
of the merging parties on June 12, 2018.
93
After DOJ declined to seek an injunction pending appeal, the
parties closed their transaction on June 15, 2018.
94
On appeal, DOJ argued that the District Court (1)
misapplied antitrust economic principles, (2) used internally inconsistent logic when evaluating industry
evidence, and (3) erred in rejecting DOJ’s quantitative model of harm.
95
DOJ also claimed that the
District Court discounted the testimony of third-party distributors due to potential self-interest while
failing to acknowledge that the testimony of Time Warner executives could potentially suer from the
same bias.
96
The D.C. Circuit ruled that the District Court had properly applied economic principles
and had reached fact-specic conclusions based on real-world evidence that contradicted DOJ’s
arguments.
97
The court also rejected DOJ’s argument regarding third party evidence, noting that the
District Court found the third-party distributor witness testimony “of little probative value” for a number
| 12
of reasons, including a lack of analysis underpinning the testimony.
98
Finally, the D.C. Circuit determined
that DOJ’s expert’s economic model failed to account for real-world facts, such as long-term contracts
that constrained the ability of the post-merger rm to raise prices.
99
Notably, the D.C. Circuit also
critiqued DOJ’s economic analysis for failing to take into account the merging parties’ oer to arbitrate
future programming disputes with third-party distributors.
100
Given these omissions, the D.C. Circuit
held that the District Court did not clearly err in rejecting the expert’s model.
101
Subsequently, DOJ
announced that it did not intend to appeal the decision.
102
Additional Challenges Pending in Federal Court
The authorities also brought a number of merger challenges in 2019 that remained pending as the
year closed.
Evonik/PeroxyChem
On August 2, 2019, FTC led an administrative complaint,
103
and sought a preliminary injunction in
federal court,
104
to prevent a merger between Evonik Industries AG and PeroxyChem Holding
Company. Evonik agreed to acquire chemical company PeroxyChem for $625 million on November
7, 2018.
105
FTC alleged that the parties competed for hydrogen peroxide customers in two regional
markets: (1) the Pacic Northwest and (2) the Southern and Central United States.
106
FTC alleged the
transaction “would create a rm with a dominant share and signicantly increase market concentration
in each regional market.”
107
Evonik and PeroxyChem, however, argued that FTC based its analysis on a
faulty market denition that included all hydrogen peroxide and ignored the dierence between Evonik’s
focus on “standard grade” applications and PeroxyChem’s focus on “specialized” grades and
applications.
108
The parties further argued that FTC improperly rejected the proposed divestiture of a
PeroxyChem manufacturing facility in British Columbia when analyzing the potential anticompetitive
eects in the Pacic Northwest.
109
In federal court, the parties stipulated to a temporary restraining
order while FTC’s motion for preliminary injunction was pending.
110
The four-day preliminary injunction
hearing concluded on December 13, 2019.
111
In anticipation of the court’s ruling, Evonik and PeroxyChem
promised to abandon the proposed acquisition if the federal court granted FTC’s motion for preliminary
injunction, or move to withdraw or dismiss FTC’s administration challenge to the proposed acquisition
if the federal court denied the motion.
112
Evonik also led a sealed motion on January 15, 2020, asking
the court to take notice of an apparent divestiture agreement that the company had recently signed
with the Canadian Competition Bureau.
113
On January 24, 2020, the court denied FTC’s motion for a
preliminary injunction, marking the agency’s rst merger challenge loss since 2015.
114
The denial of the
preliminary injunction hinged on FTC’s failed attempt to argue for a single market for all “non-electronics”
hydrogen peroxide—an “oversimplication [that] all but preclude[d] the Court from siding with [the
FTC].”
115
After the court’s ruling, Evonik closed the acquisition of PeroxyChem on February 3, 2020.
116
The parties also led a motion with FTC for withdrawal of the matter from administrative adjudication,
which FTC did not oppose. Subsequently, the Commission withdrew the matter from adjudication and
stayed proceedings before the ALJ on February 11, 2020.
117
An agency spokesperson said FTC has
not yet decided to formally abandon its challenge altogether.
118
Sabre/Farelogix
On November 14, 2018, Sabre Corporation agreed to acquire Farelogix, Inc. in a transaction valued
at approximately $360 million.
119
Both companies oer technology used in the distribution of airline
| 13
tickets. DOJ alleged that Sabre is one of three global distribution systems (GDSs) and the largest
GDS in the U.S.
120
GDSs are computerized systems that allow airlines to market and sell tickets to con-
sumers through travel agencies.
121
Farelogix oers a product called “Open Connect” that “provides tech-
nology and support services to certain airline customers.”
122
DOJ challenged the transaction on August 20,
2019, alleging that Sabre is “the dominant provider” of booking services for airlines in the United States
and that Farelogix is a “signicant and growing threat to Sabre’s dominance.”
123
Sabre publicly commit-
ted to extending existing Farelogix contracts on the same terms for at least three years and continuing to
support and invest in Farelogix’s products.
124
Trial began on January 27, 2020, in Delaware.
125
Witnesses
painted contrasting pictures of Farelogix. DOJ witnesses testied that Farelogix is a disruptor in the indus-
try, allowing travel services like airlines to bypass GDS operations and fees.
126
Sabre presented testimony
that Farelogix is small and becoming outdated, but would be able to grow internationally as a result of
the merger.
127
Importantly, Sabre’s attorneys argued that DOJ mischaracterized the merger as horizontal
when the companies actually occupy dierent places in the distribution chain for airline services.
128
After
closing arguments nished on February 6, 2020, Judge Leonard P. Stark asked questions of both sides.
129
He suggested that, while Farelogix is a one-sided platform focusing on airlines, Sabre is a two-sided plat-
form, at least some of the time, because it operates with airlines on one side and ticket agents and travel
services on the other. Judge Stark asked DOJ what he should make of this dierence in the two platforms
in light of the Supreme Court’s statement in Ohio v. America Express that only two-sided platforms can
compete with two-sided platforms.
130
Judge Stark has ordered post-trial briefs and taken the case
under advisement.
131
DOJ’s Use of Arbitration in Merger Litigation
Little discussed or used by DOJ under prior leadership, the Administrative Dispute Resolution Act
of 1996 enables federal agencies, including the DOJ Antitrust Division, to “use a dispute resolution
proceeding for the resolution of an issue in controversy that relates to an administrative program,
if the parties agree to such proceeding.”
132
Novelis/Aleris
On July 26, 2018, Novelis Inc. announced that it had agreed to acquire Aleris Corp. for approximately
$2.6 billion.
133
Both companies are providers of aluminum products.
134
In announcing the transaction,
Novelis asserted it would obtain a number of benets through the acquisition, including a more diverse
product portfolio, better integration of complementary assets to serve the Asian market, a broader
automotive business that will enable it to meet growing demand, and a stronger ability to compete
against steel suppliers.
135
DOJ, however, led suit to enjoin the transaction on September 4, 2019,
alleging that Novelis and Aleris are two of only four suppliers of aluminum automotive body sheet (ABS)
and that the relevant product market consists exclusively of aluminum ABS.
136
Although Aleris only
recently established facilities in the United States, DOJ alleged that Aleris’s entry had already com-
pelled Novelis to oer lower prices and to provide better customer service.
137
In its complaint, DOJ
cited internal Novelis documents suggesting the transaction was motivated by a desire to prevent a
new market entrant from acquiring Aleris, which Novelis feared would cause “less disciplined pricing” in
the industry.
138
In response to DOJ’s suit, Novelis claimed that DOJ’s theory was “completely divorced
from commercial reality” and that, because “aluminum ABS is in constant and evolving
competition with steel ABS,” the relevant product market must include both steel and aluminum ABS.
139
Notably, DOJ agreed to refer the issue of product market denition to binding arbitration.
140
| 14
In exercising the Antitrust Division’s authority under the Administrative Dispute Resolution Act of
1996 for the rst time, Assistant Attorney General Makan Delrahim stated that the arbitration would
“resolve the dispositive issue of market denition in this case eciently and eectively, saving taxpayer
resources.”
141
By invoking arbitration, Assistant Attorney General Delrahim hopes to decrease timing
uncertainty relative to challenging the transaction in court.
142
Enforcement by State Attorneys General
Historically, state attorneys general rarely challenged transactions without the participation of either
FTC or DOJ. However, 2019 saw state attorneys general challenge two transactions after federal
enforcers declined to take action.
Sprint/T-Mobile
On July 26, 2019, DOJ conditionally approved T-Mobile’s acquisition of Sprint, another mobile
telephone network operator oering prepaid and postpaid retail mobile wireless telecommunications
services.
143
DOJ alleged that the combined company would control a third of the national retail mobile
wireless service market and eliminate head-to-head competition between T-Mobile and Sprint.
144
To
resolve these concerns, the parties agreed to divest Sprint’s prepaid mobile wireless business
(including the Boost and Virgin wireless businesses) to DISH Network Corp. (including retail locations).
145
The merging parties agreed to make at least 20,000 cell sites and 400 retail locations available to DISH
within ve years of closing the transaction.
146
And, to further support DISH as an independent competitor,
T-Mobile agreed to enter into a “commercially reasonable” mobile virtual network operator agreement with
DISH, allowing the company to access the T-Mobile system for a seven year period, while DISH builds
its own 5G mobile network.
147
Finally, the terms of the proposed nal judgment prohibit the combined
company from “unreasonably discriminat[ing]” against DISH.
148
FCC also reviewed this deal and provided
conditional approval on November 5, 2019, touting the potential eciencies of the transaction and the
proposed divestiture as a method to restore any competition lost post-merger.
149
Despite approval from DOJ and FCC, on June 11, 2019, nine states and the District of Columbia sued
to prevent the combination,
150
with nine additional states joining the litigation. Prior to trial, four states
settled with the parties.
151
The remaining 14 states alleged that the combined rm would have more
than 40% market share in a number of the top 50 cellular market areas (including more than 50%
market share in the New York City metropolitan area),
152
and that the parties’ settlement with DOJ and
FCC was insucient.
153
On the last day of trial, December 20, 2019, DOJ and FCC led a statement of
interest arguing that the settlement was sucient to replace any potential loss of competition and the
transaction would provide benets for all American consumers, especially those in rural areas.
154
On
February 11, 2020, the district court “conclude[d] that the [p]roposed [m]erger is not reasonably likely to
substantially lessen competition” in the retail mobile wireless telecommunications services markets.
155
The court observed that despite the fact that the states’ prima facie case “might well suce to warrant
injunction of merger in more traditional industries… a presumption of anticompetitive eects would
be misleading in this particularly dynamic and rapidly changing industry.”
156
The court determined that
T-Mobile was a “maverick,” spurring pro-consumer innovation in the market, whereas Sprint “is falling
farther and farther short of the targets it must hit to remain relevant as a signicant competitor.”
157
Moreover, the court was persuaded that DISH would compete aggressively.
158
As a result, the court
declined to enjoin the transaction.
| 15
Franciscan Health/WestSound Orthopaedics & The Doctors Clinic
On March 18, 2019, Franciscan Health System, WestSound Orthopaedics, and The Doctors Clinic
settled with the State of Washington to end the state’s suit challenging both Franciscan’s acquisition
of WestSound and WestSound’s pricing arrangement with The Doctors Clinic.
159
About a year and a half
earlier, on August 31, 2017, the State of Washington led suit in federal court, alleging that Franciscan’s
July 2016 acquisition of WestSound’s assets had reduced price competition, quality of care, and
consumer choice in the orthopedic care market in Washington (specically on the Kitsap peninsula).
160
In its response, WestSound argued that (1) the resulting merger-specic eciencies would far outweigh
any alleged anticompetitive eects, (2) new entry and expansion by competitors would be sucient to
prevent harm to competition, and (3) WestSound was a “weakened competitor” prior to the acquisition
and therefore was not a competitive constraint.
161
In the same suit, Washington also alleged that
Franciscan’s acquisition of ancillary services from The Doctors Clinic, a medical group with seven
locations in Kitsap County, amounted to price xing because Franciscan shut down The Doctors Clinic
outpatient facilities in order to transfer those operations to Franciscan’s hospital facility, which charges
higher rates.
162
In February 2019, a federal judge dismissed the weakened competitor defense raised
by Franciscan and The Doctors Clinic, nding that no discrete weakened competitor defense applies
to restraint of trade claims under the Sherman Act.
163
A month later, the parties reached a settlement
under which the companies were required to pay monetary relief to the state up to $2.5 million, but
could remain aliated with each other.
164
| 16
Notable Transactions Closed without Conditions
Despite the authorities continuing to be aggressive and challenging a number of transactions in 2019,
most transactions do not raise antitrust issues and are allowed to proceed without enforcement actions,
including a number of notable transactions this past year.
Louisiana/Vantage
On June 18, 2019, DOJ issued a closing statement explaining that it would not challenge Blue Cross
Blue Shield of Louisiana’s proposed acquisition of a majority stake in Vantage Holdings, another health
insurance provider.
165
After a seven-month investigation, DOJ determined that the merger was unlikely
to harm consumers purchasing individual health insurance plans both on and o the public exchanges
established by the Aordable Care Act.
166
In addition to a substantial (and increasing) price dierential
between the two insurers’ plans (suggesting that Vantage does not appear to have a competitive
impact on Blue Cross pricing), DOJ found that Vantage’s enrollment of individual plans “has been
rapidly declining in recent years.”
167
Accordingly, DOJ closed its investigation without imposing any
conditions. Blue Cross closed the transaction to acquire a majority stake of Vantage in July 2019.
168
IBM/Red Hat
On May 3, 2019, DOJ granted early termination of the HSR waiting period to IBM and Red Hat for
IBM’s $34 billion acquisition of Red Hat, Inc. without imposing any conditions.
169
IBM provides cloud
services, while Red Hat makes and distributes open source software for enterprise customers,
focusing on data centers.
170
The companies had led their HSR forms on November 20, 2018 and
received a second request from DOJ on March 4, 2019.
171
DOJ consulted with the Department of
Defense in its review (11% of Red Hat revenue is derived from the federal government).
172
While both
companies provided middleware (software that is used between the server and the end user), DOJ
found the parties competed in fewer than ten out of 20,000 bids.
173
The parties consummated the
transaction on July 9, 2019.
174
Fiserv/First Data
Fiserv, Inc. announced its $22 billion acquisition of First Data Corp. on January 16, 2019.
175
First Data
handles payment processing for approximately 45% of all U.S. credit and debit card transactions,
176
while Fiserv provides nancial services technology from electronic bill payments to mobile banking
| 17
and risk management services, with both companies providing processing services for PIN-based debit
transactions.
177
On July 17, 2019, DOJ cleared the transaction with no conditions and without making
a public statement, likely due to the companies’ limited combined presence in PIN-based debit
transaction processing.
178
Fiserv completed its acquisition of First Data on July 29, 2019.
179
Roche/Spark Therapeutics
On December 17, 2019, F. Homann-La Roche AG (Roche) closed its $4.8 billion acquisition of Spark
Therapeutics, Inc. (Spark), a biotech company focusing on gene therapy, after a nearly 10-month FTC
investigation.
180
While Spark has only one commercialized product, Luxturna, which is used as a
treatment for retinal disease, it has four products in clinical trials, including a hemophilia treatment.
181
One of Roche’s subsidiaries, Genentech, Inc, also has a product used to treat hemophilia, Hemlibra.
182
In its closing letter, FTC stated that it did not nd Roche would have the incentive to delay or terminate
Spark’s developmental eort for its hemophilia gene therapy, but rather, Roche would be incentivized to
accelerate development to compete with the several other companies developing similar treatments.
183
The parties consummated the transaction on December 17, 2019.
184
| 18
Consent Decrees
Although the U.S. antitrust authorities have shown a willingness to challenge transactions in court, most
transactions that present antitrust issues are resolved by a consent decree in which the merging parties
agree to divestitures or submit to certain behavioral conditions to ameliorate agency concerns about
harm to competition.
Tunney Act Review
Under the Tunney Act,
185
any antitrust settlement with DOJ must be approved by a federal court. While
most settlements are approved by the court without signicant brieng and hearings, this year, Judge
Richard Leon stated in the CVS/Aetna matter that: “If the Tunney Act is to mean anything, it surely must
mean that no court should rubberstamp a consent decree approving the merger of ‘one of the largest
companies in the United States’ and ‘the nation’s third-largest health-insurance company,’… simply
because the government requests it!”
186
Judge Leon decided to hold an evidentiary hearing to better
understand the transaction and proposed settlement and eventually approved the consent decree.
CVS/Aetna
On October 10, 2018, DOJ conditionally approved the acquisition of Aetna, Inc. (Aetna) by CVS
Health Corporation (CVS).
187
CVS oers retail pharmacy and pharmacy benet management services,
while Aetna is a health insurance provider.
188
Both companies oer individual prescription drug plans
(PDPs).
189
DOJ alleged that the merger would harm competition between Aetna and CVS in the sale of
individual PDPs in 16 of 34 Medicare Part D prescription plan regions.
190
To proceed with the merger,
DOJ required the parties to divest Aetna’s individual PDP business to WellCare Health Plans, Inc.
191
As
part of the standard Tunney Act proceedings, DOJ led its complaint and the proposed settlement with
the United States District Court for the District of Columbia.
192
The Court raised concerns regarding the
merger and proposed remedy and convened an evidentiary hearing, allowing witnesses for the merging
parties and interested amici curiae groups to testify.
193
DOJ and the merging parties defended the
transaction and proposed settlement. The amici curiae groups argued that the proposed divestiture
would fail to remedy the alleged harms presented by the transaction and would create additional
competitive harms by consolidating individual prescription drug providers.
194
In evaluating these
arguments, the Court found that, although the amici “raised substantial concerns that warranted
| 19
serious consideration,” the proposed settlement was “well within the reaches of the public interest”
and approved the settlement on September 4, 2019.
195
Vertical Mergers
In recent years, the U.S. antitrust authorities have placed increased scrutiny on the potential
competitive eects of vertical transactions (i.e., those transactions involving dierent levels of the
supply chain). This past year oered three transactions where FTC addressed vertical concerns.
Staples/Essendant
On September 14, 2018, Staples agreed to acquire Essendant.
196
FTC alleged Essendant was the
“largest wholesale distributor of oce products in the United States” and Staples was the “largest
vertically integrated reseller of oce products in the United States.”
197
FTC’s analysis focused on sales
to “midmarket business-to-business customers in local areas” and alleged that integration would
provide the Staples business with access to competitively sensitive information about Essendant
customers, who act as resellers and compete with Staples, and thereby harm competition among
resellers to midmarket business-to-business customers.
198
To resolve these concerns, the parties
agreed to establish a rewall between the Essendant wholesale business and Staples’ business-to-
business sales operation.
199
After analyzing both horizontal and vertical concerns, FTC stated that
the proposed settlement remedied all likely anticompetitive eects of the merger by limiting access
to Essendant’s competitively sensitive information.
200
Commissioner Slaughter led a separate
statement. She argued generally that “vertical mergers that integrate trading partners can be just
as pernicious in sapping our economy’s vitality” and called for the Commission to commit to a
retrospective study of Staples/Essendant.
201
Commissioner Chopra also wrote separately to (1) argue
that FTC should have required stronger protections than a rewall to address abuse of data concerns,
(2) join Commissioner Slaughter’s concerns regarding vertical mergers, and (3) reiterate his previously
stated concerns with the incentives of private equity.
202
Chairman Simons along with Commissioners
Phillips and Wilson issued a statement responding to their dissenting colleagues arguing that the risk
of Staples gaining competitively sensitive information from Essendant was “the only competitive
concern arising out of this transaction that is supported by the evidence” and that the rewall
adequately prevents that potenial abuse.
203
Commissioner Wilson also published a separate statement
to express her “grave concerns about [her] dissenting colleagues’ enthusiasm for treating all vertical
mergers with skepticism.”
204
UnitedHealth/DaVita
On December 5, 2017, UnitedHealth Group Inc. agreed to a $4.3 billion acquisition of the DaVita
Medical Group (DMG), a division of DaVita Inc.
205
UnitedHealth operates two wholly owned
subsidiaries: UnitedHealthcare, which oers commercial and Medicare Advantage Organization
(“MAO”) health insurance plans, and Optum, Inc., which runs managed care provider organizations
(MCPOs).
206
DMG also operates MCPOs.
207
MCPOs are medical groups of physicians that coordinate
patient care and control costs on behalf of MAOs.
208
FTC alleged that the transaction would have both
horizontal and vertical anticompetitive eects in the area around Las Vegas, Nevada,
209
and, as a
result, the transaction would “eliminate direct and substantial” horizonal competition between the parties
in the market for MCPO services sold to MAOs near Las Vegas.
210
FTC also alleged vertical concerns,
arguing that the combination of DMG’s Las Vegas MCPO business and United’s strong MAO position
| 20
would allow the combined rm to deny MCPO services to United’s competitors.
211
To resolve these
concerns, the parties agreed on June 19, 2019 to divest DaVita’s Las Vegas MCPO to Intermountain
Healthcare.
212
FTC also analyzed similar vertical concerns in Colorado, but Commissioners Phillips
and Wilson agreed that “the evidence would not have convinced a judge that the proposed acquisition
was likely, on balance, to harm consumers in Colorado.”
213
The Colorado Attorney General disagreed,
however, and in a self-described “unprecedented move,” challenged the transaction and secured
additional conditions in a separate settlement.
214
Commissioners Slaughter and Chopra ultimately
joined Phillips and Wilson in approving the federal settlement. Commissioners Slaughter and Chopra
wrote a joint concurring statement, however, to explain that they shared the Colorado AG’s concerns
about vertical integration in Colorado, but were satised that the AG’s settlement would resolve their
concerns.
215
Chairman Simons recused himself from this matter.
Fresenius/NxStage
On August 7, 2017, Fresenius agreed to a $2 billion acquisition of NxStage.
216
Fresenius and
NxStage both oer bloodline tubing sets for open architecture hemodialysis machines for renal failure
patients.
217
FTC alleged the transaction would result in higher prices and reduced innovation because
the companies were two of only three bloodline tubing suppliers in the United States and would have
a combined market share of 82% post-transaction.
218
To resolve these concerns, the parties agreed
on February 19, 2019 to divest NxStage’s bloodline tubing business to an up-front buyer, B. Braun
Medical Inc.
219
While the complaint alleged only horizontal concerns,
220
Commissioner Slaughter’s
dissenting statement addressed vertical issues.
221
Specically, she stated that “in addition to having
a signicant share of hemodialysis treatment clinics, the merged entity would have a monopoly or
near-monopoly position for the manufacturing and sale of both in-clinic and in-home hemodialysis
machines.”
222
In light of her view that there were barriers to entry and high levels of concentration,
Commissioner Slaughter expressed concern that the post-merger company would have the incentive
and ability to foreclose competition or raise the cost of its rivals.
223
Slaughter also rejected the argument
that Fresenius’s incentive to improve the adoption of in-home dialysis was a merger-specic eciency
sucient to outweigh these negative eects.
224
Commissioner Chopra also wrote separately to dissent
on similar grounds, arguing that “vertical mergers can choke o entry by innovators by shrinking the
potential market to a point where it doesn’t make economic sense for a new business to launch.”
225
Specically, Chopra stated that potential new entrants backed by venture capital and other private
equity investors might be dissuaded from entering the market.
226
Chopra also questioned whether the
claimed eciencies were merger-specic.
227
Chairman Simons and Commissioners Phillips and Wilson
found that FTC’s analysis “showed that Fresenius likely would continue to sell . . . in-home machines
to competitors and potentially would increase the use of in-home machines dramatically,” and cited the
fact that “many market participants—including some of Fresenius’s direct competitors—agreed with
this conclusion.”
228
Up-Front Buyers
In many transactions, the parties may close the transaction subject to a divestiture without having a
denitive agreement signed with a particular buyer. In those instances, the reviewing authority retains
the right to approve the purchaser of the divested assets in order to ensure the buyer has the nancial
and operational capability to compete eectively. However, in certain transactions—for example, when
the authorities want to make sure that there is a buyer for the assets or that the scope of the assets is
| 21
sucient to restore competition, or when there is risk of the assets not staying competitive—FTC and
DOJ may require that the parties have a denitive agreement with an “upfront buyer” (i.e., a specic
purchaser that has been approved by the reviewing authority).
229
Symrise / ADF & IDF
Symrise AG, owner of chicken-based food ingredient providers Diana Food and Diana Pet Food,
agreed on January 31, 2019 to purchase chicken-based food ingredient manufacturers American
Dehydrated Foods (ADF) and International Dehydrated Foods LLC (IDF).
230
DOJ alleged that ADF
and IDF are together “the largest supplier of chicken-based food ingredients in the United States,” with
54% of the market’s capacity,
231
and that the combined company would control more than 75% of the
manufacturing capacity for chicken-based food ingredients given Symrise’s recent entry into the U.S.
in 2019 when it opened a plant in Georgia.
232
On October 30, 2019, DOJ approved the transaction,
conditioned on Symrise divesting its new Georgia plant to an upfront buyer, Kerry, Inc. “a global
manufacturer of ingredients and recipe solutions for the food and beverage industry.”
233
The transaction
closed on November 4, 2019.
234
Quaker Chemical/Houghton
Quaker Chemical Corporation agreed to acquire Global Houghton Ltd. in a transaction valued at
$172.5 million on April 4, 2017.
235
However, on July 23, 2019, FTC led a complaint alleging that
Quaker and Houghton are: (1) the only two commercial suppliers of aluminum hot rolling oil (AHRO) in
North America and (2) the two largest commercial suppliers of steel cold rolling oil (SCRO) in a highly
concentrated North American market.
236
To obtain FTC approval Quaker agreed to divest Houghton’s
AHRO and SCRO businesses, including related products, to an up-front buyer, Total S.A.
237
Amcor/Bemis
Amcor Limited agreed to acquire Bemis Company Inc. for $6.8 billion on August 6, 2018.
238
DOJ led
suit to enjoin the acquisition on May 30, 2019. DOJ alleged that the parties are “two of only three
signicant suppliers of three medical packaging products . . . in the United States,” which are “critical”
for the transportation and use of medical devices.
239
DOJ alleged that the transaction would eliminate
competition between Amcor and Bemis in three product markets for heat-sealed medical-grade packaging
materials,
240
potentially increasing prices, reducing quality, and/or reducing technical support oered by
the companies.
241
To address DOJ’s concerns, the parties and DOJ entered into a consent decree in
which the parties agreed to divest three Amcor manufacturing centers and related assets to an up-front
buyer, Tekni-Plex Inc.
242
Nascent & Future Competition
In addition to scrutinizing potential competitive issues with products that are on the market today, the
U.S. antitrust authorities also analyze whether the parties have any products in development that might
compete in the future.
Bristol-Myers Squibb/Celgene
On November 15, 2019, FTC conditionally approved Bristol-Myers Squibb Company’s (BMS) $74 billion
acquisition of Celgene Corporation, another pharmaceutical and biologic company.
243
FTC alleged that
the transaction would reduce competition in oral drugs for moderate-to-severe psoriasis,
244
because
BMS had the “most advanced oral treatment for moderate-to-severe psoriasis in development” and this
pipeline drug was expected to directly compete with Celgene’s Otezla—“the most signicant oral prod-
| 22
uct to treat moderate-to-severe psoriasis in the United States.”
245
FTC alleged that other oral drugs
for moderate-to-severe psoriasis available in the U.S. were not as eective with worse side eects
compared to Otezla and the expectations for BMS’ pipeline drug.
246
FTC also alleged that develop-
ment and FDA approval delays made timely entry of another comparable psoriasis drug unlikely.
247
The parties agreed to divest Otezla to another pharmaceutical and biologic company, Amgen, Inc.
248
Commissioners Chopra and Slaughter published dissenting statements to express concerns about the
adequacy of FTC’s “status quo approach” to pharmaceutical mergers—specically, that FTC focused
too heavily on product overlaps and divestitures of individual products, rather than taking a broader
approach to the impact on innovation.
249
Commissioner Chopra specically stated that “[s]ome evidence
shows that [pharmaceutical] mergers have choked o innovation.”
250
Similarly, Commissioner
Slaughter oered that “recent studies suggest mergers may inhibit research, development, or
approval in this changing environment,” and emphasized the rising prices of prescription drugs in the
United States as a reason to focus on pharmaceutical competition.
251
Boston Scientic/BTG
On August 7, 2019, FTC approved Boston Scientic Corporation’s (BSC) $4.2 billion acquisition of BTG,
plc. subject to a divestiture.
252
FTC alleged that the companies “are the two leading suppliers of DEBs
[drug-eluting beads] in the United States”
253
As a result, the parties agreed to divest BSC’s bead business
to Varian Medical Systems.
254
Defense Sector & Security Industry
Mergers in the security and defense sectors can oer unique considerations for federal antitrust
agencies, especially where the Department of Defense is a large customer. Although defense mergers
remain within the jurisdiction of FTC and DOJ review, DOD will internally assess the eect of a
transaction on the military industrial base and coordinate closely with the antitrust agencies’ review
of the transaction’s potential eect on competition.
255
Harris/L3
On June 20, 2019, DOJ cleared, subject to divestiture, Harris Corporation’s merger with L3
Technologies.
256
DOJ alleged the transaction would eliminate competition because Harris and L3
were the only two suppliers to the Department of Defense of night vision devices and image intensier
tubes (an essential component in night vision devices).
257
Moreover, DOJ alleged that DOD was not
likely to purchase from other competitors, as DOD requires U.S. military-grade image intensier tubes
and would not consider substituting less-capable technologies or foreign producers in response to
price increases because of national security concerns.
258
DOJ “cooperated closely” with DOD, which
conducted a detailed review.
259
On June 20, 2019, the parties agreed to divest Harris’s night vision
business, including a manufacturing center, to a buyer approved by DOJ.
260
Thales/Gemalto
Thales announced its agreement to acquire Gemalto for $5.64 billion on December 17, 2017.
261
In its
investigation, DOJ found that “Thales and Gemalto are each other’s closest competitors” in the market
for general purpose hardware security modules (components in data security systems), with shares
of 30% and 36%, respectively.
262
As a result, DOJ alleged the transaction would reduce quality and
increase prices.
263
On February 28, 2019, the parties agreed to divest Thale’s general purpose
hardware security modules business to a buyer approved by DOJ.
264
| 23
Local Markets
Dening a relevant geographic market is a critical aspect of merger investigations and a number
of transactions in 2019 demonstrate that where competition is local, the authorities will dene the
geographic markets around regional and even smaller markets.
US Foods/Services Group of America
On July 30, 2018, US Foods Holding Corp. announced that it agreed to acquire ve operating
companies from Services Group of America (SGA) for $1.8 billion in cash.
265
According to FTC, US
Foods is the second-largest distributor of food and food-related products in the United States and
operates distribution centers throughout the country,
266
while SGA operates one of the largest regional
broadline food distribution companies in the United States, active in 16 western and midwestern
states.
267
On September 11, 2019, FTC approved the transaction, subject to divestitures, citing two
main concerns associated with the transaction.
268
First, FTC alleged that the combination would reduce
competition in broadline food distribution to local customers in four geographic markets:
269
Eastern
Idaho, Western North Dakota, Eastern North Dakota, and the Seattle Area.
270
Second, FTC alleged
that the transaction would reduce competition nationwide for multi-regional and national customers.
Although SGA is only a regional operator, it is a member of Distribution Market Advantage (DMA), a
supply chain and marketing cooperative that competes against US Foods for national/multi-regional
customers.
271
FTC alleged that SGA covers an important geography within the DMA network, and
therefore DMA’s ability to compete for national customers against US Foods would be “signicantly
reduced” if SGA were owned by US Foods.
272
To resolve FTC’s concerns, USF agreed to divest three
SGA distribution centers to three up-front buyers, each of which is a DMA member.
273
FTC believes this
will allow DMA to retain its overall national footprint.
274
Tribune/Nexstar
On July 31, 2019, DOJ conditionally approved Nexstar Media Group Inc.’s $6.4 billion acquisition of
Tribune Media Company.
275
Both companies operate broadcast television stations.
276
DOJ alleged that
the transaction would reduce competition in 13 local markets where both parties operated, resulting
in higher prices for both advertising and retransmission.
277
As a result, the parties agreed with DOJ
to divest stations in these markets—Davenport, Iowa; Des Moines, Iowa; Ft. Smith, Arkansas; Grand
Rapids, Michigan; Harrisburg, Pennsylvania; Hartford, Connecticut; Huntsville, Alabama; Indianapolis,
Indiana; Memphis, Tennessee; Norfolk, Virginia; Richmond, Virginia; Salt Lake City, Utah; and
Wilkes-Barre, Pennsylvania.
278
FCC also reviewed the transaction and approved the sale with the
divestitures already part of DOJ’s divestiture agreement.
279
Bank Merger Review by DOJ and the Federal Reserve
FTC and DOJ are not the only authorities in the U.S. with jurisdiction to review transactions in certain
industries. For example, FCC reviews telecommunications mergers under the Federal Communications
Act and the Federal Reserve reviews certain bank mergers under the Bank Holding Company Act.
These agencies often cooperate with FTC and DOJ in the review of a transaction. This past year, DOJ
reviewed two bank mergers that were also subject to approval by the Federal Reserve. Rather than
ling traditional consent decrees, DOJ worked with the Federal Reserve to review the transaction and
ultimately signed letters of agreement with the merging parties that outlined divestiture commitments,
which were then incorporated into the Federal Reserve’s conditional approval of the transaction.
| 24
BB&T/SunTrust
On February 7, 2019, BB&T and SunTrust Banks, Inc. announced their agreement to merge into the
sixth-largest bank in the United States in a deal valued at $66 billion.
280
BB&T operates in 15 states
primarily in the Southeast, Mid-Atlantic, and Washington D.C.,
281
while SunTrust operates in 10 states
in the Southeast, Mid-Atlantic, and Washington D.C.
282
The parties had an overlapping presence in
multiple areas, and while DOJ found signicant competition from other banks, credit unions, and thrift
organizations in some areas, DOJ required divestitures of 28 SunTrust branches in seven local markets
across Virginia, North Carolina, and Georgia.
283
DOJ entered into a letter of agreement with the merging
parties on November 8, 2019, regarding these divestitures.
284
SunTrust and BB&T entered into a sale
agreement with First Horizon Bank on the same day.
285
The Federal Reserve and FDIC approved
the transaction on November 19, 2019,
286
and the Federal Reserve incorporated DOJ’s analysis and
divestitures into its order.
287
First Citizens/Entegra
On April 24, 2019, First Citizens BancShares, Inc. announced its agreement to acquire Entegra
Financial Corp. for $219.8 million.
288
First Citizens Bank is headquartered in Raleigh, North Carolina,
with more than 550 branches in 19 states.
289
Entegra, based in Franklin, North Carolina, is a
state-chartered, full-service commercial bank with 18 locations and two loan production oces
throughout portions of North Carolina, South Carolina, and Georgia.
290
DOJ found that both
companies were present in six local banking markets in Virginia, North Carolina, Georgia and Florida,
but no divestitures were necessary because sucient competition remained, including competition from
credit unions. However, DOJ found that the parties would control 54% of deposits in Jackson County,
North Carolina and would control 35.8% of deposits in Macon County, North Carolina, resulting in a
loss of competition in both banking markets.
291
As a result, the parties and DOJ entered into a letter
of agreement on December 2, 2019, committing to divest three Entegra branches in western North
Carolina.
292
The Federal Reserve subsequently issued its order on December 16, 2019, which
incorporated DOJ’s analysis and the agreed upon divestitures.
293
The parties closed their transaction
on January 1, 2020.
294
Non-Compete Clauses
When reviewing a proposed transaction, FTC and DOJ generally will scrutinize the transaction
agreements underlying an acquisition to ensure the agreement itself does not contain provisions that
are potentially anticompetitive. This past year, FTC imposed conditions in one merger to address
concerns that a non-compete clause would harm competition.
Nexus/Generation Pipeline
In January 2019, Nexus Gas Transmission LLC sought to acquire Generation Pipeline LLC, which
owns and operates a 23-mile pipeline serving the Toledo, Ohio area.
295
As part of the transaction
sale agreement, one of Generation Pipeline LLC’s former owners agreed to refrain from competing
to provide natural gas transportation in certain Ohio regions for three years following the close of
the transaction.
296
FTC alleged that the non-compete clause was not “reasonably limited in scope to
protect a legitimate business interest.”
297
In particular, FTC expressed concerns that the non-compete
clause did not appear to be necessary to protect Nexus’s investment in Generation Pipeline. In
September 2019, the parties entered into a consent decree in which they committed to execute a
| 25
revised agreement that eliminated the non-compete clause.
298
Nexus (and its parent companies) were
further prohibited from entering into any other non-compete clauses that might restrict competition
among natural gas pipeline competitors in the Ohio area.
299
Commissioners Chopra and Slaughter
issued statements encouraging the Commission to “continue to closely scrutinize” non-compete
agreements.
300
Commissioner Wilson issued a concurring statement, noting that although she
agreed that the Nexus non-compete clause was overbroad, “many non-compete clauses are lawful
and enforceable.”
301
| 26
Enforcement of Consent Decrees
In recent years, DOJ has emphasized its authority to ensure that parties are complying with the
obligations of their consent decrees, and in 2019, DOJ sought to extend certain consent decree
provisions of the Live Nation/Ticketmaster consent decree because DOJ concluded that Live Nation
had violated the decree.
Live Nation/Ticketmaster
In January 2010, DOJ and seventeen state attorneys general approved a settlement that allowed
Live Nation Entertainment, Inc. to acquire Ticketmaster Entertainment, Inc.
302
Live Nation is a live
entertainment company hosting shows and festivals, and Ticketmaster is a ticketing service for
live entertainment (now a wholly owned subsidiary of Live Nation Entertainment, Inc.).
303
The 2010
settlement included a ten-year prohibition against the combined entity threatening or retaliating against
concert venues that use a ticketing company other than Ticketmaster.
304
On December 19, 2019, DOJ
alleged that “Live Nation repeatedly and over the course of several years engaged in conduct that,
in the Department’s view, violated” the 2010 settlement.
305
DOJ specically laid out six examples of
venues where Live Nation conditioned the provision of live shows on venues agreeing to contract with
Ticketmaster for their ticketing services, and/or withheld shows from venues that chose not to contract
with Ticketmaster.
306
Live Nation and DOJ have agreed to extend the consent decree by ve and a
half years into 2025. The parties further agreed to modify the settlement by clarifying that any time
Live Nation withholds (or threatens to withhold) any concerts from a venue that has chosen a ticketing
services other than Ticketmaster, it would violate the consent decree, and Live Nation would be subject
to an automatic penalty of $1 million.
307
DOJ will appoint an independent monitor to investigate and
report on Live Nation’s compliance.
308
Live Nation will appoint an internal antitrust compliance ocer,
train its employees, and provide notice to current and potential venue customers of the new consent
decree.
309
Additionally, Live Nation agreed to pay DOJ’s costs and fees for this investigation and
enforcement.
310
| 27
Enforcement of HSR Violations
Under the Hart-Scott-Rodino (HSR) Act, if a transaction meets certain thresholds and no exemption
applies, the parties must notify the federal authorities and refrain from closing the transaction until the
statutory waiting period expires or is terminated early. Importantly, during that waiting period, the
parties must continue to operate independently. Both failure to le the required premerger notication
documents and so-called “gun jumping” (e.g., any joint operation of the two businesses before the deal
is allowed to close) can result in the imposition of substantial civil money penalties and delay closing.
Canon and Toshiba Settle Claims of Alleged HSR Violation for $5 Million
In a complaint lied on June 10, 2019, DOJ alleged that Canon and Toshiba circumvented the HSR
waiting period for the sale of Toshiba Medical Systems Corporation (TMSC) to Canon.
311
DOJ alleged
that Canon obtained benecial ownership of TMSC when voting rights were transferred to a merger
vehicle for a “nominal” fee—before Canon exercised a $6.1 billion option for TMSC voting shares.
312
DOJ alleged that the rst transaction was designed to avoid an HSR ling and thus violated the HSR
waiting period and reporting rules.
313
Canon and Toshiba agreed to pay $2.5 million each to resolve
the matter.
314
Third Point Funds Fined for Self-Reported Violations
Third Point LLC and three of its managed funds entered into a settlement with FTC on August 28, 2019,
agreeing to pay $609,810 to resolve three separate alleged HSR ling violations.
315
According to FTC,
each fund received shares of the newly merged DowDuPont Inc. in exchange for its Dow Chemical
Company shares in amounts over the HSR Act reporting threshold. Each fund faced separate potential
reporting obligations because each fund was its own “ultimate parent entity.”
316
FTC credited Third Point
with promptly self-reporting the violations roughly two months after the acquisitions, determined that the
violations were inadvertent, and noted that the funds had properly complied with the HSR Act for their
initial acquisitions of Dow shares.
317
Although there is an exemption under the HSR regulations to allow
for certain additional acquisitions of shares of the same issuer for which an HSR ling has been made
previously,
318
FTC alleged that this exemption did not apply to the Third Point funds because the funds
acquired shares in the merged DowDuPont, a new entity distinct from Dow.
319
FTC further cited the
funds’ prior non-monetary settlement for a previous alleged violation of the HSR Act in 2015 as further
reason to seek nancial penalties in this case.
320
| 28
Private Merger Litigation
While federal and state antitrust enforcers are the primary parties that challenge transactions in the
U.S., private parties also may seek to challenge a transaction under the antitrust laws. Although
challenges by private parties are rare, over the past few years, one notable private merger challenge
has been litigated.
JELD-WEN/Craftmaster International
On February 2, 2018, a jury found that JELD-WEN, Inc., a manufacturer of molded interior doors
and doorskins, violated antitrust laws by merging in June 2012 with its competitor, Craftmaster
Manufacturing, Inc. (CMI). The case was brought by Steves & Sons, Inc. after the transaction had
closed, asking for either damages or an equitable remedy. After trial, the jury awarded damages for
future lost prots. On October 5, 2018, the District Court for the Eastern District of Virginia ordered
JELD-WEN to divest a doorskin facility as an equitable remedy, instead of what the jury awarded.
321
JELD-WEN’s motion to overturn the ruling was denied in March 2019.
322
JELD-WEN then led an
appeal with the Fourth Circuit Court of Appeals in August 2019. JELD-WEN argued that private party
challenges to consummated mergers should be barred because they are too late, and that private
challenges should be considered only before the consummation of a merger.
323
DOJ led an amicus
brief in support of the plainti, opposing JELD-WEN’s arguments.
324
DOJ recommended that private
challenges to a consummated merger should not be uniformly prohibited by the doctrine of laches, but
rather the reviewing court should consider whether the plainti reasonably delayed ling its own case
because it instead cooperated with the government’s initial investigation and/or because antitrust
harms may not have been apparent before consummation.
325
The case remains pending before the
Fourth Circuit.
| 29
Niels Christian Ersbøll
Partner, Brussels
niels.ersboll@arnoldporter.com
+32 (0)2 290 7829
Michael B. Bernstein
Partner, Washington, DC
michael.b.bernstein@arnoldporter.com
+1 202.942.5227
Jonathan Gleklen
Partner, Washington, DC
jonathan.gleklen@arnoldporter.com
+1 202.942.5454
Debbie Feinstein
Partner, Washington, DC
debbie.feinstein@arnoldporter.com
+1 202.942.6594
Luc Gyselen
Partner, Brussels
luc.gyselen@arnoldporter.com
+32 (0)2 290 7831
Contacts
US EU
Axel Gutermuth
Partner, Brussels
axel.gutermuth@arnoldporter.com
+32 (0)2 290 7832
| 30
Endnotes
1 See, e.g., In the Matter of Axon Enterprise, Inc. and Safariland, LLC, No. D9389 (Jan. 3, 2020), available at
https://www.ftc.gov/system/les/documents/cases/d09389_administrative_part_iii_-_public_redacted.pdf; In the Matter
of Edgewell Personal Care Company, No. 9390 (Feb. 2, 2020), available at https://www.ftc.gov/system/les/documents/
cases/public_p3_complaint_-_edgewell-harrys.pdf.
2 Order to File a Special Report, No. P201201 (Feb. 10, 2020), available at https://www.ftc.gov/system/les/documents/
reports/6b-orders-le-special-reports-technology-platform-companies/6b_platform_study_sample_order.pdf, see also
Press Release, Fed. Trade Comm’n, FTC to Examine Past Acquisitions by Large Technology Companies (Feb. 11,
2020), available at https://www.ftc.gov/news-events/press-releases/2020/02/ftc-examine-past-acquisitions-large-technol-
ogy-companies.
3 Axon Enterprise, Inc. v. FTC, No. 2:20-cv-00014 (D. Ariz. Jan. 3, 2020), available at, https://www.law360.com/arti-
cles/1231114/attachments/0, see also Complaint, In the Matter of Axon Enterprise, No. D9389 (F.T.C. Jan. 3, 2020),
available at https://www.ftc.gov/system/les/documents/cases/d09389_administrative_part_iii_-_public_redacted.pdf.
4 Makan Delrahim Assistant Att’y Gen., It Takes Two: Modernizing the Merger Review Process (Sep. 25, 2018) (Assistant
Attorney General Makan Delrahim Delivers Remarks at the 2018 Global Antitrust Enforcement Symposium), available at
https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-2018-global-antitrust.
5 Makan Delrahim Assistant Att’y Gen., “Getting Better”*: Progress and Remaining Challenges in Merger Review (Feb.
5, 2020), available at https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-
media-institute-luncheon.
6 Jerey Wilder, Acting Deputy Assistant Att’y Gen., Remarkets at the Hal White Antitrust Conference (June 10, 2019),
https://www.justice.gov/opa/speech/acting-deputy-assistant-attorney-general-jerey-m-wilder-delivers-remarks-hal-white.
7 Press Release, Fed. Trade Comm’n, FTC’s Bureau of Competition Launches Task Force to Monitor Technology Markets
(Feb. 26, 2019), available at https://www.ftc.gov/news-events/press-releases/2019/02/ftcs-bureau-competition-launches-
task-force-monitor-technology; Press Release, Dep’t of Justice, Justice Department Reviewing the Practices of Market-
Leading Online Platforms (July 23, 2019), available at https://www.justice.gov/opa/pr/justice-department-reviewing-
practices-market-leading-online-platforms; D. Bruce Homan, Director, Bureau of Competition, Fed. Trade Comm’n,
Remarks at GCR Live, Antitrust in the Digital Economy: A Snapshot of FTC Issues 2 (May 2019), https://www.ftc.gov/
system/les/documents/public_statements/1522327/homan_-_gcr_live_san_francisco_2019_speech_5-22-19.pdf; Steve
Lohr, Google Antitrust Investigation Outlined by State Attorneys General, N.Y. Times, Sept. 9, 2019, https://www.nytimes.
com/2019/09/09/technology/google-antitrust-investigation.html.
8 Press Release, Fed. Trade Comm’n, FTC to Examine Past Acquisitions by Large Technology Companies (Feb. 11, 2020),
available at https://www.ftc.gov/news-events/press-releases/2020/02/ftc-examine-past-acquisitions-large-technology-
companies.
9 Jerey Wilder, Acting Deputy Assistant Att’y Gen., Remarkets at the Hal White Antitrust Conference (June 10, 2019),
https://www.justice.gov/opa/speech/acting-deputy-assistant-attorney-general-jerey-m-wilder-delivers-remarks-hal-white.
10 Consolidation Prevention and Competition Promotion Act of 2019, S. 307, 116th Cong. (2019), available at https://
www.congress.gov /bill/116th-congress/senate-bill/307/text; Press Release, Sen. Amy Klobuchar, Klobuchar Introduces
Legislation to Modernize Antitrust Enforcement and Promote Competition (Feb. 1, 2019), https://www.klobuchar.senate.
gov/public/index.cfm/2019/2/klobuchar-introduces-legislation-to-modernize-antitrust-enforcement-and-promote-com-
petition [hereinafter Klobuchar Promote Competition]; see also Eric Johnson, Sen. Amy Klobuchar, 2020 Presidential
Candidate, Explains How She Would Regulate Big Tech if She Wins, Vox (Mar. 16, 2019), https://www.vox.com/pod-
casts/2019/3/16/18267880/amy-klobuchar-2020-democratic-president-candidate-antitrust-privacy-kara-swisher-decode-
podcast-sxsw.
11 Senator Klobuchar’s bill would shift the burden in transactions where either (1) the acquiring person would hold $5
billion in the target’s voting securities and assets, or (2) either party has assets, net annual sales, or market capitalization
greater than $100 billion and the acquiring person would hold $50 million in the target’s voting securities and assets.
S. 307, supra note 10.
12 S. 307, supra note 10; Klobuchar Promote Competition, supra note 10 .
13 Press Release, Sen. Amy Klobuchar, Klobuchar Introduces Legislation to Crack Down on Monopolies that Violate
Antitrust Law (Aug. 2, 2019), https://www.klobuchar.senate.gov/public/index.cfm/2019/8/klobuchar-introduces-legislation-
to-crack-down-on-monopolies-that-violate-antitrust-law. The bill would also mandate FTC and DOJ issue joint guidelines
for when to exercise penalty authority. Id.
14 Id.
15 Public Notice, Fed. Commc’ns Comm’n, Application Filed for the Transfer of Control of Inmate Calling Solutions, LLC
d/b/a ICSolutions to Securus Technologies, Inc. (July 2, 2018), available at https://docs.fcc.gov/public/attachments/DA-18-
684A1.pdf.
16 Press Release, Dep’t of Justice, Securus Technologies Abandons Proposed Acquisition of Inmate Calling Solutions After
Justice Department and the Federal Communications Commission Informed Parties of Concerns (Apr. 3, 2019),
https://www.justice.gov/opa/pr/securus-technologies-abandons-proposed-acquisition-inmate-calling-solutions-after-justice.
| 31
17 Press Release, Chairman Pai Statement on Decision by Inmate Calling Services Providers to Withdraw Merger
Application (Apr. 2, 2019), available at https://docs.fcc.gov/public/attachments/DOC-356836A1.pdf.
18 Press Release, Dep’t of Justice, Securus Technologies Abandons Proposed Acquisition of Inmate Calling Solutions After
Justice Department and the Federal Communications Commission Informed Parties of Concerns (Apr. 3, 2019), available
at https://www.justice.gov/opa/pr/securus-technologies-abandons-proposed-acquisition-inmate-calling-solutions-after-
justice.
19 Press Release, Republic National Distributing Company and Breakthru Beverage Group Terminate Proposed Merger
(Apr. 5, 2019), available at https://wineindustryadvisor.com/2019/04/05/republic-national-distributing-company-and-break-
thru-beverage-group-terminate-proposed-merger.
20 Id.
21 Press Release, Fed. Trade Comm’n, Statement of the FTC’s Bureau of Competition Regarding Announcement that
Republic National Distributing Company and Breakthru Beverage Group have Terminated Their Acquisition Agreement
(Apr. 8, 2019), available at https://www.ftc.gov/news-events/press-releases/2019/04/statement-ftcs-bureau-competition-
regarding-announcement-republic.
22 Press Release, Quad/Graphics to Acquire LSC Communications in All-Stock Transaction (Oct. 31, 2018), available at
https://www.businesswire.com/news/home/20181031005291/en/QuadGraphics-Acquire-LSC-Communications-All-Stock-
Transaction.
23 Complaint ¶¶ 1, 11-13, United States v. Quad/Graphics, Inc., 1:19-cv-04153 (N.D. Ill. June 20, 2019), available at
https://www.justice.gov/opa/press-release/le/1175936/download.
24 Id. ¶ 15.
25 News Release, Quad/Graphics, Inc., Quad to Vigorously Defend its Pending Acquisition of LSC Communications (June
20, 2019), available at http://investors.qg.com/phoenix.zhtml?c=231687&p=irol-newsArticle&ID=2402017; News Release,
LSC Communications, Inc., LSC Communications Comments on DOJ Action Regarding Proposed Transaction with Quad
(June 20, 2019), available at https://investor.lsccom.com/news-releases/2019/06-20-2019-220459226.
26 Press Release, Quad/Graphics, Inc., Quad and LSC Communications Mutually Agree to Terminate Merger Agreement
(July 23, 2019), available at http://investors.qg.com/news-releases/news-release-details/quad-and-lsc-communications-
mutually-agree-terminate-merger.
28 Press Release, Fidelity National Financial, Inc., Fidelity National Financial, Inc. Announces Signing of a Merger
Agreement to Acquire Stewart Information Services for $50 Per Share in Combination of Case and FNF Common Stock
(Mar. 19, 2018), available at https://www.investor.fnf.com/news-releases/news-release-details/delity-national-nancial-
inc-announces-signing-merger.
29 Id.; Complaint ¶ 5, In the Matter of Fidelity National Financial, Inc., No. 9385 (F.T.C. Sep. 6, 2019), available at
https://www.ftc.gov/system/les/documents/cases/d09385_delity_stewart_administrative_complaint_public_version.pdf
[hereinafter Fidelity Complaint].
30 Fidelity Complaint, supra note 30.
31 Id. ¶ 4.
32 Id. ¶¶ 3, 65-66.
33 Id. ¶ 76.
34 Press Release, Stewart Information Services Corporation, Stewart Information Services Announces Termination of
Merger Agreement with Fidelity National Financial (Sep. 10, 2019), available at https://www.stewart.com/en/media/press-
releases/2019/stewart-information-services-announces-termination-of-merger-agr.html.
35 Press Release, Fed. Trade Comm’n, FTC Challenges Illumina’s Proposed Acquisition of PacBio (Dec. 17, 2019),
available at https://www.ftc.gov/news-events/press-releases/2019/12/ftc-challenges-illuminas-proposed-acquisition-
pacbio.
36 Press Release, PacBio, Illumina to Acquire Pacic Biosciences for Approximately $1.2 Billion, Broadening Access to
Long-Read Sequencing and Accelerating Scientic Discovery (Nov. 1, 2018), available at https://www.pacb.com/press_re-
leases/illumina-to-acquire-pacic-biosciences-for-approximately-1-2-billion-broadening-access-to-long-read-sequencing-
and-accelerating-scientic-discovery/ [hereinafter PacBio Press Release].
37 Complaint ¶ 1, In the Matter of Illumina, Inc. & Pacic Biosciences of California, Inc., No. 9387 (F.T.C. Dec. 17, 2019),
available at https://www.ftc.gov/system/les/documents/cases/d9387_illumina_pacbio_administrative_part_3_complaint_
public.pdf [hereinafter Illumina Complaint].
38 Id. ¶¶ 2-3.
39 PacBio Press Release, supra note 35.
40 Illumina Complaint, supra note 36, ¶¶ 9, 21, 45.
41 Id. ¶ 7.
| 32
42 Press Release, Illumina, Illumina and Pacic Biosciences Announce Termination of Merger Agreement (Jan. 2, 2020),
https://www.businesswire.com/news/home/20200102005512/en/Illumina-Pacic-Biosciences-Announce-Termination-
Merger-Agreement.
43 Press Release, PacBio, Pacic Biosciences Announces Fourth Quarter and Annual 2019 Financial Results (Feb. 6,
2020), https://www.pacb.com/press_releases/pacic-biosciences-announces-fourth-quarter-and-annual-2019-nancial-
results/.
44 Press Release, TreeHouse Foods, Inc., TreeHouse Foods, Inc. Announces Denitive Agreement to Sell Ready-to-Eat
Cereal Business to Post Holdings (May 2, 2019), available at https://www.prnewswire.com/news-releases/treehouse-
foods-inc-announces-denitive-agreement-to-sell-ready-to-eat-cereal-business-to-post-holdings-300842487.html.
45 Press Release, Fed. Trade Comm’n, FTC Alleges Post Holdings, Inc.’s Proposed Acquisition of TreeHouse Foods, Inc.’s
Private Label Ready-to-Eat Cereal Business Will Harm Competition (Dec. 19, 2019), available at https://www.ftc.gov/
news-events/press-releases/2019/12/ftc-alleges-post-holdings-incs-proposed-acquisition-treehouse; Complaint for
Temporary Restraining Order and Preliminary Injunction, Fed. Trade Comm’n v. Post Holdings, Inc., No. 1:19-cv-03836-
RJL (D.D.C. Dec. 27, 2019).
46 Complaint ¶¶ 1, 14-16, In the Matter of Post Holdings, Inc., No. 9388 (F.T.C. Dec. 19, 2019), available at https://www.ftc.
gov/system/les/documents/cases/d09388posttreehousecomplaint.pdf [hereinafter Post Complaint].
47 Id. ¶¶ 3, 31-33, 36-37.
48 Submission by Post Holdings, Inc. & TreeHouse Foods, Inc. Responding to Minute Order Setting Status Conference at 2,
Fed. Trade Comm’n v. Post Holdings, Inc., No. 1:19-cv-03836-RJL (D.D.C. Jan. 2, 2020) [hereinafter Post Submission];
Press Release, Post Holdings, Inc., Post Holdings and TreeHouse Foods Provide Update on Proposed Private Label
Ready-to-Eat Cereal Transaction (July 22, 2019), available at https://www.postholdings.com/newsroom/post-holdings-
and-treehouse-foods-provide-update-on-proposed-private-label-ready-to-eat-cereal-transaction/.
49 Post Submission, supra note 47, at 2.
50 Post Complaint, supra note 45.
51 Temporary Restraining Order, Fed. Trade Comm’n v. Post Holdings, Inc., No. 1:19-cv-03836-RJL (D.D.C. Dec. 27, 2019).
52 Press Release, Fed. Trade Comm’n, FTC Alleges Post Holdings, Inc.’s Proposed Acquisition of TreeHouse Foods, Inc.’s
Private Label Ready-to-Eat Cereal Business Will Harm Competition (Dec. 19, 2019), available at https://www.ftc.gov/
news-events/press-releases/2019/12/ftc-alleges-post-holdings-incs-proposed-acquisition-treehouse.
53 Press Release, TreeHouse Foods, Inc., TreeHouse Foods, Inc. Terminates Agreement to Sell Ready-to-Eat Cereal
Business to Post Holdings; Announces Re-Marketing of the Business (Jan. 13, 2020), available at https://www.prnews-
wire.com/news-releases/treehouse-foods-inc-terminates-agreement-to-sell-ready-to-eat-cereal-business-to-post-holdings-
announces-re-marketing-of-the-business-300985928.html.
54 Complaint, In the matter of Otto Bock (Dec. 20, 2017), https://www.ftc.gov/system/les/documents/cases/otto_bock_
part_3_complaint_redacted_public_version.pdf.
55 Initial Decision, In the matter of Otto Bock, No. 9378 (F.T.C. May 7, 2019), https://www.law360.com/articles/1217552/ftc-
orders-prosthetic-maker-to-unwind-merger.
56 Opinion at 4, In the matter of Otto Bock, No. 9378 (F.T.C. Nov. 1, 2019), available at https://www.ftc.gov /system/les/doc-
uments/cases/d09378commissionnalopinion.pdf; see also Matthew Perlman, FTC Orders Prosthetic Maker to Unwind
Merger, Law360 (Nov. 6, 2019), https://www. law360.com/articles/1217552/ftc-orders-prosthetic-maker-to-unwind-merger.
57 Otto Bock, No. 9378, at 1-3.
58 Respondent’s Initial Appeal Brief at 28, In the Matter of Otto Bock, No. 9378 (F.T.C. June 5, 2019), available at
https://www.ftc.gov/system/les/documents/cases/d09378_rs_appeal_briefpublic594857.pdf [hereinafter Otto Bock
Initial Appeal Brief]; see also Respondent’s Reply Brief at 3,7, In the Matter of Otto Bock, No. 9378 (F.T.C. July 19, 2019),
available at https://www.ftc.gov/system/les/documents/cases/07192019respondentsreplybrief595278.pdf.
59 Otto Bock Initial Appeal Brief, supra note 57, at 19-20.
60 Id. at 39-42.
61 Oral Argument at 1817–20, In the Matter of Otto Bock, No. 9378 (F.T.C. July 25, 2019), available at https://www.ftc.
gov/system/les/documents/cases/d09378_-_otto_bock_oral_argument_before_the_commission_-_volume_1_-_
july_25_2019_-_public.pdf.
62 Opinion, In the matter of Otto Bock, No. 9378, at 10 (F.T.C. Nov. 1, 2019), available at https://www.ftc.gov/system/les/
documents/cases/d09378commissionnalopinion.pdf at 10; see also Otto Bock Initial Appeal Brief, supra note 57, at 28.
63 Otto Bock, No. 9378, at 33-36.
64 Id. at 61-63.
65 Id. at 44, 49-51.
66 Id. at 61-63.
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67 Pet. for Review, Otto Bock HealthCare North America, Inc. v. Fed. Trade Comm’n, No. 19-1265 (D.C. Cir. Dec. 30, 2019).
68 Joint Motion to Hold Proceedings in Abeyance for 30 Days, Otto Bock HealthCare North America, Inc. v. Fed. Trade
Comm’n, No. 19-1265 (D.C. Cir. Jan. 27, 2020).
69 Order, Otto Bock HealthCare North America, Inc. v. Fed. Trade Comm’n, No. 19-1265 (D.C. Cir. Jan. 29, 2020).
70 Complaint, In the Matter of Tronox Ltd., No. 9377 (F.T.C. Dec. 5, 2017), available at https://www.ftc.gov/system/les/docu-
ments/cases/docket_no_9377_tronox_cristal_part_3_administrative_complaint_redacted_public_version_12072017.pdf.
71 Id. ¶ 13.
72 Id. ¶¶ 1-3.
73 Emergency Complaint For Declaratory Judgment And Injunctive Relief, Tronox Ltd. v. Fed. Trade Comm’n,
No. 1:18-cv-00010-SA-RP (N.D. Miss. Jan. 23, 2018), available at https://dlbjbjzgnk95t.cloudfront.net/1005000/1005091/
https-ecf-msnd-uscourts-gov-doc1-10312053353.pdf.
74 Press Release, European Comm’n, Mergers: Commission approves Tronox’s Acquisition of Cristal, Subject to Conditions
(July 3, 2018), available at http://europa.eu/rapid/press-release_IP-18-4361_en.htm.
75 Complaint for Temporary Restraining Order and Preliminary Injunction, Fed. Trade Comm’n v. Tronox Ltd.,
No. 1:18-cv-01622-TNM (D.D.C. July 10, 2018), available at https://www.ftc.gov/system/les/documents/cas-
es/001_2018-07-10_complaint_tronox.pdf.
76 Memorandum Opinion at 2, Fed. Trade Comm’n v. Tronox Ltd., No. 1:18-cv-01622 (TNM) (D.D.C. Sep. 12, 2018),
available at https://www.ftc.gov/system/les/documents/cases/tronox_pi_opinion_redacted.pdf.
77 Id. at 35.
78 Initial Decision, In the Matter of Tronox Ltd., No. 9377 (F.T.C. Dec. 14, 2018), available at https://www.ftc.gov/ system/
les/documents/cases/docket_9377_tronox_et_al_initial_decision_redacted_public_version_0.pdf.
79 Id.
80 Decision, In the Matter of Tronox, Ltd., No. 9377 (F.T.C. May 28, 2019), available at https://www.ftc.gov/system/les/docu-
ments/cases/d09377_tronox_decision_and_order.pdf.
81 Press Release, Tronox, Tronox Completes Cristal Acquisition (Apr. 10, 2019), https://www.tronox.com/tronox-completes-
cristal-acquisition/.
82 Fed. Trade Comm’n v. Sanford Health, No. 17-3783 (8th Cir. June 13, 2019)
83 Press Release, Fed. Trade Comm’n, FTC and State Attorney General Challenge Physician Group Acquisition in North
Dakota (June 22, 2017), available at https://www.ftc.gov/news-events/press-releases/2017/06/ftc-state-attorney-general-
challenge-physician-group-acquisition.
84 Complaint ¶ 2, In the Matter of Sanford Health, No. 9376 (F.T.C. June 21, 2017), available at https://www.ftc.gov/system/
les/documents/cases/d9376sanfordmiddakotacomplaint.pdf
85 Press Release, Fed. Trade Comm’n, Statement by Federal Trade Commission Acting Bureau of Competition Director
Bruce Homan on the Court Ruling Granting a Preliminary Injunction in the Sanford Health/Mid Dakota Clinic Matter
(Dec. 14, 2017), available at https://www.ftc.gov/news-events/press-releases/2017/12/statement-federal-trade-commis-
sion-acting-bureau-competition. see also Order, Fed. Trade Comm’n v. Sanford Health, No. 1:17-cv-133 (D.N.D. Dec. 13,
2017) (granting preliminary injunction), available at https://www.ftc.gov/system/les/documents/cases/sanford_order.pdf.
86 Fed. Trade Comm’n v. Sanford Health, No. 1:17-cv-00133 (D.N.D. June 22, 2017), appeal docketed, No. 17-cv-03783
(8th Cir. Dec. 26, 2017), https://www.pacermonitor.com/public/case/23347690/Federal_Trade_ Commission,_et_al_v_
Sanford_Health,_et_al.
87 See Fed. Trade Comm’n v. Sanford Health, No. 17-3783, slip op. at 5 (8th Cir. June 13, 2019), available at https://ecf.ca8.
uscourts.gov/opndir/19/06/173783P.pdf.
88 Id. at 7-8.
89 Id. at 9.
90 Press Release, Fed. Trade Comm’n, After Healthcare System Sanford Health Abandons Acquisition of North Dakota
Healthcare Provider Mid Dakota Clinic, FTC Dismisses Case from Administrative Trial Process (July 9, 2019), available at
https://www.ftc.gov/news-events/press-releases/2019/07/after-healthcare-system-sanford-health-abandons-acquisition-
north?utm_source=govdelivery.
91 United States v. AT&T, Inc., No. 18-5214 (D.C. Cir. Feb. 26, 2019), available at https://www.cadc.uscourts.gov/internet/
opinions.nsf/390E66D6D58F426B852583AD00546ED6/$le/18-5214.pdf.
92 Complaint, United States v. AT&T, No. 1:17-cv-02511 (D.D.C. Nov. 20, 2017).
93 United States v. AT&T, Inc., No. 1:17-cv-02511 (D.D.C. June 12, 2018), available at https://www.law360.com/dockets/dow
nload/5b204ace8e05314a97000019?doc_url=https%3A%2F%2Fecf.dcd.uscourts.gov%2Fdoc1%2F04516625590&label=
Case+Filing.
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94 Press Release, AT&T, AT&T Complete Acquisition of Time Warner, Inc. (Jun. 15, 2018), https://about.att.com/story/
att_completes_acquisition_of_time_warner_inc.html; see also Diane Bartz & David Shepardson, AT&T Closes $85 Billion
Deal for Time Warner, REUTERS (Jun. 14, 2018), https://www.reuters.com/article/us-time-warner-m-a-at-t/att-closes-
85-billion-deal-for-time-warner-idUSKBN1JA36U.
95 See United States v. AT&T, Inc., No. 18-5214, slip op. at 17, 18 (D.C. Cir. Feb. 26, 2019).
96 See id. at 30.
97 Id. at 21.
98 Id.
99 Id. at 32-33.
100 Id. at 1, 11-12.
101 Id. at 33.
102 Diane Bartz & David Shepardson, U.S. Justice Department Will Not Appeal AT&T, Time Warner Merger after Court
Loss, Reuters (Feb. 26, 2019), https://www.reuters.com/news/picture/us-justice-department-will-not-appeal-at-idUSKC-
N1QF1XB.
103 Complaint, In the Matter of RAG-Stiftung, No. 9384 (F.T.C. Aug. 2, 2019), available at https://www.ftc.gov/system/les/
documents/cases/d09384_evonik-peroxychem_part_iii_complaint_8-2-19.pdf.
104 Fed. Trade Comm’n v. RAG-Stiftung, No. 1:19-cv-02337 (D.D.C. Aug. 2, 2019), available at https://www.ftc.gov/system/
les/documents/cases/191_0029_evonikperoxychem_tro_complaint_8-2-19.pdf.
105 Id. ¶¶ 18-19.
106 Id. ¶¶ 2, 28.
107 Id. ¶ 2.
108 Defendants’ Memorandum In Opposition at 2–3, Fed. Trade Comm’n v. RAG-Stiftung, No. 1:19-cv-02337 (D.D.C.
Nov. 6, 2019).
109 Id.
110 Motion for Entry of Stipulated Temporary Restraining Order, Fed. Trade Comm’n v. RAG-Stiftung, 1:19-cv-02337
(D.D.C., Aug. 2, 2019).
111 Christopher Cole, Judge Hints At Rejecting FTC Bid To Block Chemical Deal, Law360 (Dec. 13, 2019, 8:19 PM),
https://www.law360.com/mergersacquisitions/articles/1228266/judge-hints-at-rejecting-ftc-bid-to-block-chemical-deal.
112 Comm’n Order Granting Continuance at 2, , In the Matter of RAG-Stiftung, No. 9384 (F.T.C. Jan. 2, 2020), available at
https://www.ftc.gov/system/les/documents/cases/d09384_commission_order_granting_mtn_for_continuancepublic.pdf.
Therefore, FTC granted the parties joint motion to postpone the beginning of the administrative hearing until after
the federal court’s ruling. Id.
113 Matthew Perlman, FTC Dings Hydrogen Peroxide Co.’s Canadian Divestiture Deal, Law360 (Jan. 17, 2020),
https://www.law360.com/articles/1235637.
114 Order, Fed. Trade Comm’n v. RAG-Stiftung, No. 1:19-cv-02337 (D.D.C. Jan. 24, 2020); Bryan Koenig, Chemical Merger
Strategy Burns FTC, Law360 (Feb. 6, 2020), https://www.law360.com/articles/1241068.
115 Mem. Op.,. at 2, Fed. Trade Comm’n v. RAG-Stiftung, No. 1:19-cv-02337, at *2 (D.D.C. Jan. 24, 2020); see also Bryan
Koenig, Market ‘Oversimplication’ Doomed FTC Merger Challenge, Law360 (Feb. 3, 2020), https://www.law360.com/
articles/1240281.
116 Press Release, Evonik, Evonik Successfully Closes Acquisition of PeroxyChem (Feb. 3, 2020), available at
https://corporate.evonik.com/en/evonik-successfully-closes-acquisition-of-peroxychem-122808.html.
117 Order Withdrawing Matter from Adjudication Pursuant to Rule 3.26(c) of the Commission Rules of Practice, In the Matter
of RAG-Stiftung, No. 9384 (F.T.C. Feb. 11, 2020), available at https://www.ftc.gov/system/les/documents/cases/d09384_
commission_order_withdrawing_matter_from_adjudication.pdf.
118 Bryan Koenig, FTC Pulls Chem Merger Challenge As It Mulls Court Loss, Law360 (Feb. 12, 2020),
https://www.law360.com/articles/1243446.
119 Complaint ¶ 16, United States v. Sabre Corp., No. 1:19-cv-01548-UNA (D. Del. Aug. 20, 2019), available at
https://www.justice.gov/atr/case-document/le/1196836/download.
120 Id. ¶¶ 2, 13.
121 Id. ¶ 2.
122 Answer of Defs. Farelogix, Inc. and Sandler Capital Partners V, L.P. at 4, United States v. Sabre Corp., No.
1:19-cv-01548-LPS (D. Del. Sep. 10, 2019), available at https://www.law360.com/articles/1197555/ attachments/1.
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123 Complaint at 1, United States v. Sabre Corp., No. 1:19-cv-01548-UNA (D. Del. Aug. 20, 2019), available at
https://www.justice.gov/atr/case-document/le/1196836/download.
124 Id.
125 Je Montgomery, United Exec Brands Sabre-Farelogix Deal Antitrust ‘Nightmare’, Law360 (Jan. 27, 2020),
https://www.law360.com/articles/1238048.
126 Je Montgomery, Sabre, DOJ Duel Over Industry Support For Farelogix Merger, Law360 (Feb. 4, 2020),
https://www.law360.com/articles/1240738/sabre-doj-duel-over-industry-support-for-farelogix-merger.
127 Je Montgomery, DOJ Presses Sabre On Talk Of Buying Farelogix ‘To Kill It’, Law360 (Feb. 3, 2020),
https://www.law360.com/articles/1240137; Je Montgomery, United Exec Brands Sabre-Farelogix Deal Antitrust
‘Nightmare’, Law360 (Jan. 27, 2020), https://www.law360.com/articles/1238048.
128 Montgomery, DOJ Presses Sabre, supra note 126.
129 Je Montgomery, DOJ Seeks Flexible Court Take On Threat From Sabre Merger, Law360 (Feb. 6, 2020),
https://www.law360.com/articles/1241411.
130 Id.
131 Id.
132 5 U.S.C. § 572.
133 Press Release, Novelis Inc., Novelis to Acquire Downstream Aluminum Producer Aleris (July 26, 2018), available at
investors.novelis.com/2018-07-26-Novelis-to-Acquire-Downstream-Aluminum-Producer-Aleris.
134 See id.
135 Id.
136 Complaint ¶¶ 1-2, United States v. Novelis, Inc., No. 1:19-cv-02033 (N.D. Ohio Sep. 4, 2019), available at
https://www.justice.gov/atr/case-document/le/1199461/download.
137 Id. ¶¶ 16-17.
138 Id. ¶¶ 2, 19-20, 26-31.
139 Def. Novelis Inc.’s Answer to Compl. at 1, 3, United States v. Novelis, Inc., No. 1:19-cv-02033 (N.D. Ohio Oct. 16, 2019),
available at https://www.law360.com/articles/1210537/attachments/0.
140 Press Release, Dep’t of Justice, Justice Department Sues to Block Novelis’s Acquisition of Aleris (Sep. 4, 2019),
available at https://www.justice.gov/opa/pr/justice-department-sues-block-noveliss-acquisition-aleris-1.
141 Id.
142 See Assistant Att’y Gen. Makan Delrahim, Discussion at the Hudson Institute: US Antitrust Policy at 4 (Dec. 16, 2019),
https://s3.amazonaws.com/media.hudson.org/Transcript_US%20Antitrust%20Policy%20w%20Assistant%20Attorney%20
General%20Makan%20Delrahim.pdf.
143 Press Release, T-Mobile US, Inc., T-Mobile and Sprint to Combine, Accelerating 5G Innovation & Increasing Competition
(Apr. 29, 2018), available at https://www.t-mobile.com/news/5gforall. Decision, State of New York v. Deutsche Telekom
AG, No. 19-cv-5434 (S.D.N.Y. Feb. 11, 2020), https://www.law360.com/articles/1242797/attachments/0; Press Release,
Dep’t of Justice, Justice Department Settles with T-Mobile and Sprint in Their Proposed Merger by Requiring a Package
of Divestitures to Dish (July 26, 2019), available at https://www.justice.gov/opa/pr/justice-department-settles-t-mobile-and-
sprint-their-proposed-merger-requiring-package [hereinafter T-Mobile Release]
144 Complaint ¶¶ 16, 18-19, United States v. Deutsche Telekom AG, No. 1:19-cv-02232 (D.D.C. July 26, 2019), available at
https://www.justice.gov/opa/press-release/le/1187721/download.
145 T-Mobile Release, supra note 142; [Proposed] Final Judgment at 16, United States v. Deutsche Telekom AG, No.
1:19-cv-02232 (D.D.C. July 26, 2019), available at https://www.justice.gov/opa/press-release/le/1187706 /download.
[hereinafter Deutsche Telekom Prop. Final J.].
146 Deutsche Telekom Prop. Final J., supra note 144, at 13, 16.
147 Id. at 19.
148 Id.
149 Press Release, Fed. Commc’ns Comm’n, FCC Approves Merger of T-Mobile and Sprint (Nov. 5, 2019), available at
https://docs.fcc.gov/public/attachments/DOC-360637A1.pdf.
150 New York, California, Colorado, Connecticut, District of Columbia, Maryland, Michigan, Mississippi, Virginia, and
Wisconsin led the original complaint. Complaint, State of New York v. Deutsche Telekom AG , No. 1:19-cv-5434-VM
(S.D.N.Y. June 11, 2019), available at https://ag.ny.gov/sites/default/les/6.11.19_new_york_ attorney_general_james_
moves_to_block_t-mobile_and_sprint_megamerger.pdf.
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151 Texas, Colorado, Mississippi, and Nevada concluded separate settlements and left the case. See Bryan Koenig and
Matthew Perlman, The AGs Challenging T-Mobile/Sprint & The Ones Left Behind, Law360 (Dec. 6, 2019), https://www.
law360.com/articles/1225877/the-ags-challenging-t-mobile-sprint-the-ones-left-behind. As of January 8, 2020, New York,
California, Connecticut, District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Oregon,
Pennsylvania, Virginia, and Wisconsin remained in the case. Plainti States’ Proposed Finding of Fact and Conclusions
of Law, State of New York et al. v. Deutsche Telekom AG, et al., No. 1:19-cv-5434 (S.D.N.Y. Jan. 8, 2020).
152 Id. ¶¶ 5, 48–50.
153 Redacted Third Am. Comp. ¶¶ 97-102, State of New York vs. Deutsche Telekom AG, No. 1:19-cv-05434-VM
(S.D.N.Y. Sep. 18, 2019), ECF No. 214.
154 Bryan Koenig, Feds Assert 5G, Rural Needs Over AGs’ T-Mobile/Sprint Row, Law360 (Dec. 20, 2019),
https://www.law360.com/articles/1230231.
155 Decision at 170, State of New York v. Deutsche Telekom AG, 19-cv-5434 (S.D.N.Y. Feb. 11, 2020), available at
https://www.law360.com/articles/1242797/attachments/0.
156 Id. at 171.
157 Id.
158 Id. at 171-72.
159 Christopher Cole, Hospitals Agree to Settle Antitrust Suit with Washington AG, Law360 (Mar. 18, 2019),
https://www.law360.com/articles/1140083.
160 Complaint ¶¶ 84-92, State of Washington v. Franciscan Health System, No. 3:17-cv-05690 (W.D. Wash. Aug. 31, 2017)
[hereinafter Franciscan Complaint].
161 Answer and A. Defenses of WestSound Orthopaedics at 10, Franciscan Health System, No. 3:17-cv-05690 (W.D.
Wash. Oct. 30, 2017).
162 Franciscan Complaint, supra note 159, ¶¶ 4, 7.
163 Order Granting Pl.’s Mot. for Partial J. on the Pleadings, State of Washington v. Franciscan Health
System, No. C17-5690 BHS (W.D. Wash. Feb. 19, 2019), available at https://www.law360 .com/articles/1130657/attach-
ments/0; see also Matt Bernardini, Health Cos.’ Weakness Defense Won’t Fly in Price-Fixing Suit, Law360 (Feb. 19,
2019), https://www.law360.com/articles/1130657.
164 Consent Decree, State of Washington v. Franciscan Health System, No. 3:17-cv-05690 (W.D. Wash. June 28, 2019).
Press Release, Washington State Oce of the Att’y Gen., Attorney General Ferguson: CHI Franciscan Will Pay Up to
$2.5 Million over Anti-Competitive Kitsap Deals (May 13, 2019), available at https://www.atg.wa.gov/news/news-releases/
attorney-general-ferguson-chi-franciscan-will-pay-25-million-over-anti.
165 Press Release, Dep’t of Justice, Statement of the Department of Justice Antitrust Division on the Closing of Its
Investigation of the Louisiana Health Service & Indemnity Co.–Vantage Holdings Inc. Merger (June 18, 2019), available
at https://www.justice.gov/opa/pr/statement-department-justice-antitrust-division-closing-its-investigation-louisiana-health.
166 Id.
167 Id.
168 Press Release, Cain Brothers, Blue Cross and Blue Shield of Louisiana Acquires a Majority Stake of Vantage Holdings
Inc. (July 29, 2019), available at https://www.cainbrothers.com/transactions/blue-cross-and-blue-shield-of-louisiana-ac-
quires-a-majority-stake-of-vantage-holdings-inc/.
169 Int’l Bus. Machs. Corp., Current Report Pursuant to Section 13 Or 15 (D) of the Securities Exchange Act of 1934 (Form 8-K)
(May 3, 2019), available at https://www.sec.gov/Archives/edgar/data/51143/000110465919026947/a19-9325_28k.htm.
170 Alex Sherman & Lora Kolodny, IBM to Acquire Red Hat in Deal Valued at $34 billion, CNBC (Oct. 28, 2018, 2:16 PM),
https://www.cnbc.com/2018/10/28/ibm-to-acquire-red-hat-in-deal-valued-at-34-billion.html.
171 Rebecca Shore, Red Hat/IBM Receive Second Request from DoJ, PaRR (Mar. 5, 2019, 10:01 AM).
172 Rebecca Shore & Larry Feldman, Red Hat/IBM: DoD Helping DoJ’s Merger Review, Ocial Says, PaRR (Apr. 4, 2019,
12:57 AM).
173 Aldrin Brown & Rebecca Shore, Red Hat/IBM: Middleware Overlap, Scrutiny of Open Source Unlikely to Derail Merger,
Lawyers Say, PaRR (Dec. 14, 2018, 2:24 PM).
174 Lauren Feiner, IBM Closes Its $34 Billion Acquisition of Red Hat, CNBC (July 9, 2019),
https://www.cnbc.com/2019/07/09/ibm-closes-its-34-billion-acquisition-of-red-hat.html.
175 Financials, Fiserv to Buy First Data in $22 Billion Stock Deal, CNBC (Jan. 16, 2019),
https://www.cnbc.com/2019/01/16/serv-to-buy-rst-data-in-a-22-billion-all-stock-deal.html.
176 Matthew Flamm, Apple Pay pays o for First Data, Crain’s N.Y. Bus. (Nov. 30, 2014), https://www.crainsnewyork.com/
article/20141201/TECHNOLOGY/141209996/apple-pay-pays-o-for-rst-data.
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177 Fiserv Inc., Reuters https://www.reuters.com/companies/FISV.O (last visited Nov. 22, 2019).
178 Fiserv, Inc., Current Report Pursuant to Section 13 or 15(D) of the Securities Exchange Act of 1934 (Form 8-K) (July 17,
2019), available at https://www.sec.gov/Archives/edgar/data/798354/000119312519195744/d777816d8k.htm.
179 Press Release, Fiserv, Inc., Fiserv Completes Combination With First Data Further Cementing Industry Leadership (July
29, 2019), available at https://investors.serv.com/news-releases/news-release-details/serv-completes-combination-rst-
data-further-cementing.
180 Press Release Roche, Roche Concludes Acquisition of Spark Therapeutics, Inc. to Strengthen Presence in Gene
Therapy (Dec. 17, 2019), available at https://www.roche.com/media/releases/med-cor-2019-12-17b.htm; Hailey Konnath,
Roche-Spark $4.8B Merger Clears US, UK Regulatory Hurdles, Law360 (Dec. 16, 2019), https://www.law360.com/com-
petition/articles/1228885/roche-spark-4-8b-merger-clears-us-uk-regulatory-hurdles.
181 Id.
182 Roche Pharmaceuticals - Business Overview, Roche https://www.roche.com/about/business/pharmaceuticals /roche_
pharmaceuticals_business_overview.htm (last visited Dec. 18, 2019).
183 Statement Of The Federal Trade Commission In Re Roche Holding/Spark Therapeutics, Fed. Trade Comm’n (Dec. 16,
2019), https://www.ftc.gov/system/les/documents/public_statements/1558049/1910086_roche-spark_commission_state-
ment_12-16-19.pdf.
184 Press Release, Roche, Roche Concludes Acquisition of Spark Therapeutics, Inc. to Strengthen Presence in Gene
Therapy (Dec. 17, 2019), available at https://www.roche.com/media/releases/med-cor-2019-12-17b.htm.
185 15 U.S.C. § 16.
186 Mem. Op. at 2, United States v. CVS Health Corp., No. 18-2340 (RJL) (D.D.C. Sep. 4, 2019), available at https://ecf.dcd.
uscourts.gov/cgi-bin/show_public_doc?2018cv2340-135 [hereinafter CVS Mem. Op.].
187 Press Release, Dep’t of Justice, Justice Department Requires CVS and Aetna to Divest Aetna’s Medicare Individual Part
D Prescription Drug Plan Business to Proceed with Merger (Oct. 10, 2018), available at https://www.justice.gov/opa/pr/
justice-department-requires-cvs-and-aetna-divest-aetna-s-medicare-individual-part-d; see also Francesca M. Pisano &
Vernon G. Ross, District Court Approves CVS/Aetna Final Judgment After Evidentiary Hearing, Arnold & Porter (Sep. 27,
2019), https://www.arnoldporter.com/en/perspectives /publications/2019/09/district-court-approves-cvs-aetna-nal.
188 Complaint ¶¶ 15-16, United States v. CVS Health Corp., No. 1:18-cv-02340 (D.D.C. Oct. 10, 2018),
https://www.justice.gov/opa/press-release/le/1099831/download.
189 Id. ¶ 1.
190 Id. ¶¶ 29-30.
191 Proposed Final J. at 2-4, United States v. CVS Health Corp., No. 1:18-cv-02340 (D.D.C. Oct. 10, 2018), available at
https://www.justice.gov/opa/press-release/le/1099841/download.
192 Id.
193 See CVS Mem. Op., supra note 185, at 7-8.
194 See, e.g., Transcript of Motions Hearing, United States v. CVS Health Corp., No. 18-2340 (RJL) (D.D.C. June 4, 2019).
195 CVS Mem. Op., supra note 185, at 21 (internal citations omitted).
196 Complaint ¶ 6, In the Matter of Sycamore Partners II, No. C-4667 (F.T.C. Jan. 25, 2018), available at
https://www.ftc.gov/system/les/documents/cases/1810180_staples_essendant_complaint_1-28-19.pdf.
197 Id. ¶¶ 2, 3.
198 Id. ¶¶ 11.
199 Press Release, Fed. Trade Comm’n, FTC Imposes Conditions on Staples’ Acquisition of Oce Supply Wholesaler
Essendant Inc. (Jan. 28, 2019), available at https://www.ftc.gov/news-events/press-releases/2019/01/ftc-imposes-condi-
tions-staples-acquisition-oce-supply; Agreement Containing Consent Order, In the Matter of Sycamore Partners II, File
No. 181-0180 (F.T.C. Jan. 28, 2019), available at https://www.ftc.gov/system/les /documents/cases/1810180_staples_
essendant_agreement_1-28-19.pdf.
200 Analysis of Agreement Containing Consent Order to Aid Public Comment, In the Matter of Sycamore Partners II, L.P.,
File No. 181-0180, Docket No. C-4667 (F.T.C. Jan. 28, 2019), available at
https://www.ftc.gov/system/les/documents/cases/1810180_staples_essendant_analysis_1-28-19.pdf.
201 Statement of Comm’r Rebecca Kelly Slaughter, In the Matter of Sycamore Partners, Commission File No. 181-0180
(Jan. 28, 2019), https://www.ftc.gov/system/les/documents/public_statements/1448321/181_0180_staples_essend-
ant_slaughter_statement.pdf.
202 Statement of Comm’r Rohit Chopra, In the Matter of Sycamore Partners, Commission File No. 181-0180 (Jan. 28, 2019),
https://www.ftc.gov/system/les/documents/public_statements /1448335/181_0180_staples_essendant_chopra_state-
ment_1-28-19_0.pdf.
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203 Statement of Chairman Joseph J. Simons, Comm’r Noah Joshua Phillips, and Comm’r Christine S. Wilson Concerning
the Proposed Acquisition of Essendant, Inc. by Staples, Inc., In the Matter of Sycamore Partners II, L.P., File No. 181-
0180 (F.T.C. Jan. 28, 2019), https://www.ftc.gov/system/les/documents/public_statements/1448328/181_0180_staples_
essendant_ majority_statement_1-28-19.pdf.
204 Statement of Comm’r Christine S. Wilson, In the Matter of Sycamore Partners II, L.P., File No. 181-0180 (F.T.C. Jan. 28,
2019), https://www.ftc.gov/system/les/documents/public_statements/1448307/181_0180_staples_ essendant_wilson_
statement.pdf.
205 The purchase price was initially $4.9 billion, but that was amended down to $4.3 billion on December 11, 2018. Complaint
¶ 10, In the Matter of UnitedHealth Group Inc., No. C-4677 (F.T.C. June 19, 2019), available at https://www.ftc.gov/sys-
tem/les/documents/cases/181_0057_c4677_united_davita_complaint_6-19-19.pdf.
206 Id. ¶¶ 1, 2, 4.
207 Id. ¶¶ 4-5.
208 Id. ¶ 7.
209 Id. ¶¶ 17, 18.
210 Id. ¶ 17.
211 Id. ¶ 18.
212 Analysis of Agreement Containing Consent Orders To Aid Public Comment at 1, In the Matter of UnitedHealth Group Inc.,
No. C-4677 (F.T.C. June 19, 2019), available at https://www.ftc.gov/system/les/documents/cases /181_0057_united_da-
vita_aapc_6-19-19.pdf.
213 Statement of Comm’r Noah Joshua Phillips and Comm’r Christine S. Wilson, In the Matter of UnitedHealth
Group Inc., No. 181-0057 (June 19, 2019), available at https://www.ftc.gov/system/les/documents/public_ state-
ments/1529366/181_0057_united_davita_statement_of_cmmrs_p_and_w.pdf.
214 Press Release, Colorado Att’y Gen., Antitrust Challenge and Settlement to the UnitedHealth Group and DaVita Merger
Will Safeguard Competition, Cost, and Quality of Healthcare for Seniors in the Colorado Springs Area (June 19, 2019),
https://coag.gov/press-releases/06-19-19/. The parties agreed to lift United’s exclusive contract with Centura Health for
at least three and a half years and extend DMG’s agreement with Humana at least until the end of 2020.
215 Statement of Comm’rs Rebecca Kelly Slaughter and Rohit Chopra, In the Matter of United Health, No. 181-0057 (F.T.C.
June 19, 2019), available at https://www.ftc.gov/system/les/documents/public_statements/1529359/181_0057_ united_
davita_statement_of_cmmrs_s_and_c.pdf.
216 Complaint ¶ 5, In the Matter of Fresenius Medical Care, No. C-4671 (F.T.C. Feb. 19, 2019), available at https://www.ftc.
gov/system/les/documents/cases/1710227_fresenius-nxstage_complaint_2-19-19.pdf [hereinafter Fresenius Complaint].
217 Id. ¶¶ 6-7, 9.
218 Id. ¶¶ 9, 11.
219 Press Release, Fed. Trade Comm’n, FTC Requires Fresenius Medical Care AG & KGaA and NxStage Medical, Inc. to
Divest Bloodline Tubing Assets to B. Braun Medical, Inc. as a Condition of Merger (Feb. 19, 2019), available at
https://www.ftc.gov/news-events/press-releases/2019/02/ftc-requires-fresenius-medical-care-ag-kgaa-nxstage-medical-inc.
220 See Fresenius Complaint, supra note 215, ¶ 11.
221 Dissenting Statement of Comm’r Rebecca Kelly Slaughter, In the Matter of Fresenius Medical Care, No. 171-0227 (Feb.
19, 2019), available at https://www.ftc.gov/system/les/documents/public_statements/1455740/171_ 0227_fresenius-
nxstage_slaughter_statement_2-19-19.pdf.
222 Id. at 1.
223 See id. at 1-2.
224 Id. at 2.
225 Dissenting Statement of Comm’r Rohit Chopra at 1, In the Matter of Fresenius Medical Care, No. 171-0227 (Feb 19,
2019), available at https://www.ftc.gov/system/les/documents/public_statements/1455733/171_0227_fresenius _nx-
stage_chopra_statement_2-19-19.pdf.
226 Id. at 3.
227 See id at 4.
228 Statement of Chairman Joseph J. Simons, Comm’r Noah Joshua Phillips, and Comm’r Christine S. Wilson Concerning
the Proposed Acquisition of NxStage Medical, Inc. by Fresenius Medical Care AG & Co., In the Matter of Fresenius
Medical Care, No. 171-0227 (Feb. 19, 2019), available at https://www.ftc.gov/system/les/documents/public_state-
ments/1455719/171_0227_fresenius_nxstage_majority_statement_2-19-19.pdf.
229 In addition to those listed below, upfront buyers were required in UnitedHealth/DaVita, Fresenius/NxStage,
Boston Scientic/BTG, US Foods/SGA, and Sprint/T-Mobile (federal).
| 39
230 Complaint at ¶¶ 4, 7, United States v. Symrise AG, No. 1:19-cv-03263 (D.D.C. Oct. 30, 2019), available at
https://www.justice.gov/opa/press-release/le/1213906/download.
231 Id.
232 Id.
233 Press Release, Dep’t of Justice, Justice Department Requires Divestiture to Resolve Antitrust Concerns in Symrise’s
Acquisition of IDF and ADF (Oct. 30, 2019), available at https://www.justice.gov/opa/pr/justice-department-requires-dives-
titure-resolve-antitrust-concerns-symrises-acquisition-idf; Matthew Perlman, DOJ Clears $900M Pet Food Deal With Plant
Sale, Law360 (Oct. 30, 2019, 9:22 PM), https://www.law360.com/competition/articles/1215311/doj-clears-900m-pet-food-
deal-with-plant-sale.
234 Press Release, Symrise, Symrise successfully closes acquisition of ADF/IDF (Nov. 4, 2019), available at
https://www.symrise.com/newsroom/article/symrise-successfully-closes-acquisition-of-addf/.
235 Complaint ¶ 6, In the Matter of Quaker Chemical Corp., No. C-4681 (F.T.C. July 23, 2019), available at
https://www.ftc.gov/system/les/documents/cases/171_0125_quaker_houghton_complaint_7-23-19.pdf.
236 Id. ¶¶ 13-15.
237 Press Release, Fed. Trade Comm’n, FTC Imposes Conditions on Quaker Chemical Corp.’s Acquisition of Houghton Inter-
national Inc. (July 23, 2019), available at https://www.ftc.gov/news-events/press-releases/2019/07/ftc-imposes-conditions-
quaker-chemical-corps-acquisition-houghton?utm_source=govdelivery.
238 Complaint ¶ 1, United States v. Amcor Limited, No. 1:19-cv-01592 (D.D.C. May 30, 2019), available at
https://www.justice.gov/opa/press-release/le/1167121/download.
239 Id. ¶ 2.
240 The product markets include heat-seal coated medical-grade Tyvek rollstock (“coated Tyvek”), heat-seal coated
medical-grade paper rollstock (“coated paper”), and heat-seal coated medical-grade Tyvek die-cut lidding (“die-cut lids”).
241 Id. ¶¶ 19-27.
242 Press Release, Dep’t of Justice, Justice Department Requires Amcor to Divest Medical Flexible Packaging Assets in
Order to Proceed with Bemis Acquisition (May 30, 2019), available at https://www.justice.gov/opa/pr/justice-department-
requires-amcor-divest-medical-exible-packaging-assets-order-proceed.
243 Hailey Konnath, FTC Clears Bristol-Myers’ $74B Celgene Buy with Drug Sale, Law360 (Nov. 15, 2019), https://www.
law360.com/articles/1220573/ftc-clears-bristol-myers-74b-celgene-buy-with-drug-sale; Press Release, Fed. Trade
Comm’n, FTC Requires Bristol-Myers Squibb Company and Celgene Corporation to Divest Psoriasis Drug Otezla as
a Condition of Acquisition (Nov. 15, 2019), available at https://www.ftc.gov/news-events/press-releases/2019/11/ftc-re-
quires-bristol-myers-squibb-company-celgene-corporation [hereinafter Bristol-Myers Release]; Press Release,
Bristol-Myers Squibb Company, Bristol-Myers Squibb to Acquire Celgene to Create a Premier Innovative Biopharma
Company (Jan. 3, 2019), available at https://news.bms.com/press-release/corporatenancial-news/bristol-myers-squibb-
acquire-celgene-create-premier-innovative.
244 Complaint ¶ 7-9, In the Matter of Bristol-Myers Squibb Co. & Celgene Corp., No. C-4690 (F.T.C. Nov. 15, 2019), available
at https://www.ftc.gov/system/les/documents/cases/bms-celgene_complaint.pdf [hereinafter Bristol-Myers Complaint].
245 Id. ¶ 7; see also Bryan Koenig, Two Agencies, Two ‘Nascent Competitor’ Merger Challenges, Law360 (Dec. 18, 2019),
https://www.law360.com/competition/articles/1229605/two-agencies-two-nascent-competitor-merger-challenges.
246 Bristol-Myers Complaint, supra note 4.
247 Id. ¶ 8.
248 Bristol-Myers Release, supra note 3.
249 Dissenting Statement of Comm’r Rohit Chopra, In the Matter of Bristol-Myers Squibb Co. & Celgene Corp., No. 191-0061
(F.T.C. Nov. 15, 2019), available at https://www.ftc.gov/system/les/documents/public _statements/1554293/dissent-
ing_statement_of_commissioner_chopra_in_the_matter_of_bristol-myers-celgene_1910061.pdf; Dissenting Statement
of Comm’r Rebecca Kelly Slaughter, In the Matter of Bristol-Myers Squibb Co. & Celgene Corp., No. 191-0061 (F.T.C.
Nov. 15, 2019), available at https://www.ftc.gov/system /les/documents/public_statements/1554283/17_-_nal_rks_bms-
celgene_statement.pdf.
250 Dissenting Statement of Comm’r Rohit Chopra, In the Matter of Bristol-Myers Squibb Co. & Celgene Corp., No. 191-0061
(F.T.C. Nov. 15, 2019), available at https://www.ftc.gov/system/les/documents/public _statements/1554293/dissenting_
statement_of_commissioner_chopra_in_the_matter_of_bristol-myers-celgene_1910061.pdf.
251 Dissenting Statement of Comm’r Rebecca Kelly Slaughter, In the Matter of Bristol-Myers Squibb Co. & Celgene
Corp., No. 191-0061 (F.T.C. Nov. 15, 2019), available at https://www.ftc.gov/system /les/documents/public_state-
ments/1554283/17_-_nal_rks_bms-celgene_statement.pdf.
252 Press Release, Fed. Trade Comm’n, FTC Requires Divestitures and Imposes Conditions on Boston Scientic Corp.’s
Acquisition of BTG plc (Aug. 7, 2019), available at https://www.ftc.gov/news-events/press-releases/2019/08/ftc-requires-
divestitures-imposes-conditions-boston-scientic [hereinafter Boston Scientic Release].
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253 Id. ¶¶ 9, 11.
254 Boston Scientic Release, supra note 251; Decision and Order, In the Matter of Boston Scientic Corp., No. C-4684
(F.T.C. Aug. 7, 2019), available at https://www.ftc.gov/system/les/documents/cases/191_0039_boston_ scientic_do.pdf.
255 See DOD Directive 5000.62 (Feb. 27, 2017), available at https://www.esd.whs.mil/Portals/54/Documents/DD /issuances/
dodd/500062p.pdf.
256 Complaint, United States v. Harris, Corp., No. 1:19-cv-01809 (D.D.C. June 20, 2019), available at https://www.justice.gov/
opa/press-release/le/1175841/download.
257 Id. ¶ 2-3.
258 Id. ¶ 15, 20-22.
259 Andrea Shalal, Pentagon ocial: ‘No Fundamental Concern’ Over Defense Consolidation, Reuters (Nov. 13, 2018),
https://www.reuters.com/article/us-l-3-m-a-harris/pentagon-ocial-no-fundamental-concern-over-defense-consolidation-
idUSKCN1NI2XI.
260 Proposed Final Judgment, United States v. Harris Corp., No. 1:19-cv-01809 (D.D.C. June 20, 2019), available at
https://www.justice.gov/opa/press-release/le/1175846/download; Competitive Impact Statement, United States v. Harris,
Corp., No. 1:19-cv-01809 (D.D.C. June 20, 2019), available at https://www.justice.gov/opa/press-release/le/1175851 /
download; Press Release, Dep’t of Justice, Justice Department Requires Harris and L3 to Divest Harris’s Night Vision
Business to Proceed with Merger (June 20, 2019), available at https://www.justice .gov/opa/pr/justice-department-re-
quires-harris-and-l3-divest-harris-s-night-vision-business-proceed.
261 Press Release, Thales Group, Thales and Gemalto Create a World Leader in Digital Security (Dec. 17, 2017), available
at https://www.thalesgroup.com/en/worldwide/press-release/thales-and-gemalto-create-world-leader-digital-security;
Complaint ¶ 8, United States v. Thales S.A., No. 1:19-cv-00569 (D.D.C. Feb. 28, 2019), available at https://www.justice.
gov/opa/press-release/le/1136026/download.
262 Id. ¶¶ 3, 24, 9.
263 Id. ¶ 31
264 Competitive Impact Statement at 1-2, United States v. Thales S.A., No. 1:19-cv-00569 (D.D.C. Feb. 28, 2019), available
at https://www.justice.gov/opa/press-release/le/1136031/download.
265 Press Release, US Foods Holding Corp., US Foods to Acquire SGA’s Food Group of Companies for $1.8 Billion (July
30, 2018), available at https://ir.usfoods.com/investors/stock-information-news/press-release-details/2018/US-Foods-to-
Acquire-SGAs-Food-Group-of-Companies-for-18-Billion/default.aspx [hereinafter USF Release]. This was pursuant to a
Stock Purchase Agreement dated July 28, 2018. Complaint ¶ 5, In the Matter of US Foods Holding Corp., No. C-4688
(F.T.C. Sep. 10, 2019), available at https://www.ftc.gov/system/les/documents /cases/181_0215_usf-sga_ complaint.pdf
[hereinafter US Foods Complaint].
266 US Foods Complaint, supra note 263.
267 USF Release, supra note 263.
268 Press Release, Fed. Trade Comm’n, FTC Requires Divestitures and Imposes Conditions on US Foods Holding Corp.’s
Acquisition of Services Group of America, Inc. (Sep. 11, 2019), available at https://www.ftc.gov/news-events/press-releas-
es/2019/09/ftc-requires-divestitures-imposes-conditions-us-foods-holding.
269 According to FTC, broadline distribution “entails the warehousing, sale, and distribution of a wide range of product cat-
egories to foodservice customers, along with value-added services.” US Foods Complaint, supra note 263, ¶ 6.
270 US Foods Complaint, supra note 263, ¶¶ 8-11.
271 Id. ¶¶ 2, 12.
272 Id. ¶ 12.
273 Press Release, Fed. Trade Comm’n, FTC Approves Final Order Imposing Conditions on US Foods Holding Corp.’s
Acquisition of Services Group of America, Inc. (Nov. 19, 2019), available at https://www.ftc.gov/news-events/press-releas-
es/2019/11/ftc-approves-nal-order-imposing-conditions-us-foods-holding.
274 Id.
275 Press Release, Dep’t of Justice, Justice Department Requires Structural Relief to Resolve Antitrust Concerns in Nexstar’s
Merger with Tribune (July 31, 2019), available at https://www.justice.gov/opa/pr/justice-department-requires-structural-
relief-resolve-antitrust-concerns-nexstar-s-merger [hereinafter Nexstar Release].
276 Complaint ¶ 3, United States v. Nexstar Media Group, Inc., No. 1:19-cv-02295 (D.D.C. July 31, 2019).), available at
https://www.justice.gov/opa/press-release/le/1189776/download
277 Nexstar Release, supra note 5.
278 Id.
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279 FCC did not require the divestitures of stations in Indianapolis, Indiana, Norfolk, Virginia, and Wilkes-Barre,
Pennsylvania. See id.; see also Press Release, Fed. Commc’ns Comm’n, FCC Grants Approval of Nexstar-Tribune
Merger (Sep. 16, 2019), available at https://docs.fcc.gov/public/attachments/DOC-359677A1.pdf.
280 Press Release, SunTrust Banks, Inc., BB&T and SunTrust to Combine in Merger of Equals to Create the Premier
Financial Institution (Feb. 7, 2019), available at http://investors.suntrust.com/news/news-details/2019/BBT-and-SunTrust-
to-Combine-in-Merger-of-Equals-to-Create-the-Premier-Financial-Institution/default.aspx.
281 Federal Reserve, Order Approving the Merger of Bank Holding Companies (Nov. 19, 2019), available at
https://www.federalreserve.gov/newsevents/pressreleases/les/orders20191119a1.pdf [hereinafter FRB BB&T Order].
282 Id. at 2-3.
283 Id. at 17-24. Divestitures were deemed necessary in Eastern Shore, Virginia; Martinsville, Virginia; South Boston,
Virginia; Lumpkin County, Georgia; Wayne County, Georgia; Winston-Salem, North Carolina; and Durham-Chapel Hill,
North Carolina.
284 Id.
285 Press Release, BB&T, First Horizon to Expand Branch Network in Key Growth Markets (November 8, 2019),
https://bbt.investorroom.com/2019-11-08-First-Horizon-to-Expand-Branch-Network-in-Key-Growth-Markets;
Chelsea Naso, SunTrust, BB&T to Sell 30 Branches in DOJ Deal, Law360 (Nov. 8, 2019), https://www.law360.com/ar-
ticles/1218371/suntrust-bb-t-to-sell-30-branches-in-doj-deal.
286 FRB BB&T Order supra note 281; FDIC, Order and Basis for Corporation Approved (Nov. 19, 2019), available at
https://www.fdic.gov/news/news/press/2019/pr19111a.pdf; see also Press Release, Fed. Reserve, Federal Reserve
Board announces approval of application by BB&T Corporation to merge with SunTrust Banks (Nov. 19, 2019),
available at https://www.federalreserve.gov/newsevents/pressreleases/orders20191119a.htm; Press Release, Fed.
Deposit Ins. Corp., FDIC Approves the Merger Between BB&T and SunTrust (Nov. 19, 2019), https://www.fdic.gov/news/
news/press/2019/pr19111.html; Press Release, SunTrust Banks, Inc., BB&T and SunTrust Receive Regulatory Approvals
for Merger of Equals to Form Trust (Nov. 19, 2019), available at http://investors.suntrust.com/news/news-details/2019/
BBT-and-SunTrust-receive-regulatory-approvals-for-merger-of-equals-to-form-Truist/default.aspx.
287 See FRB BB&T Order, supra at note 312, at 24 (“The DOJ conducted a review of the potential competitive eects of the
proposal and has advised the Board that consummation of the proposal with the proposed divestitures of branches in the
banking markets, as discussed above, would not likely have a signicantly adverse eect on competition in those markets
or in any other relevant banking market.”), n.40 (“As a condition of consummation of the proposed merger, BB&T has
committed that it will execute, before consummation of the proposed merger, a sales agreement with a competitively
suitable banking organization. BB&T has provided a similar commitment to the DOJ.”).
288 See, e.g., Press Release, Entegra Financial Corp., First Citizens Bank, Entegra Financial Corp. Announce Merger
Agreement (Apr. 24, 2019), available at http://www.snl.com/IRW/le/4290505/Index?KeyFile=397629866 [hereinafter
Entegra Release]; Press Release, First Citizens Bank, First Citizens Bank, Entegra Financial Corp. Announce Merger
Agreement (Apr. 24, 2019), available at https://www.rstcitizens.com/about/newsroom/news-releases?date=2019-04-24a
[hereinafter FCB Release].
289 FCB Release, supra note 8; Federal Reserve, Order Approving the Acquisition of a Bank Holding Company, FRB Order
No. 2019-17 at 2 (Dec. 16, 2019), available at https://www.federalreserve.gov /newsevents/pressreleases/les/order-
s20191216a1.pdf [hereinafter FRB First Citizens Order].
290 Entegra Release, supra note 8.
291 Id. at 10-12.
292 Id.; see also Khorri Atkinson, First Citizens Will Shed 3 Branches For $220M Entegra Deal, Law360 (Dec. 3, 2019),
https://www.law360.com/articles/1224734/rst-citizens-will-shed-3-branches-for-220m-entegra-deal. Holly Springs (30
Hyatt Road, Franklin, NC), Highlands (473 Carolina Way, Highlands, NC),) and Sylva (498 East Main, Sylva, NC)).
293 FRB First Citizens Order, supra note 9, at 13-14 (“The DOJ conducted a review of the potential competitive eects of the
proposal and has advised the Board that consummation of the proposal with the proposed divestitures of branches in the
banking markets, as discussed above, would not likely have a signicantly adverse eect on competition in those markets
or in any other relevant banking market.”), n. 26 (“As a condition of consummation of the proposed merger, First Citizens
has committed that it will execute, before consummation of the proposed merger, a sales agreement with a
competitively suitable banking organization. First Citizens has provided a similar commitment to the DOJ.”).
294 Press Release, First Citizens Bank, First Citizens Bank Completes Merger With Entegra Financial Corp., Entegra Bank
(Jan. 1, 2020), https://www.rstcitizens.com/about/newsroom/news-releases?date=2020-01-01.
295 Complaint, In the Matter of DTE Energy Company, Enbridge Inc., and NEXUS Gas Transmission LLC, at 2, No. 191-0068
(F.T.C. Sep. 13, 2019), available at https://www.ftc.gov/system/les/documents/cases/06_dte-enbridge_complaint_redact-
ed.pdf.
296 Id.
297 Id.
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298 Decision, In the matter of DTE Energy Company et al., No. C-4691 (F.T.C. Nov. 21, 2019), https://www.ftc.gov/system/
les/documents/cases/191_0068_c-4691_dte-enbridge_decision_and_order_public_version.pdf.
299 Id.
300 Statement of Comm’rs Rohit Chopra and Rebecca Kelly Slaughter, In the Matter of DTE Energy Company,
Enbridge Inc., at 2, File No. 191-0068 (Sep. 12, 2019), available at https://www.ftc.gov/system/les/documents/public_
statements/1544138/joint_statement_of_chopra_and_slaughter_dte_energy-generation_pipeline_9-13-19.pdf.
301 Concurring Statement of Christine S. Wilson, In the Matter of DTE Energy Company, Enbridge Inc., and NEXUS Gas
Transmission LLC, File No. 191-0068 (Sep. 12, 2019), available at https://www.ftc.gov/system/les /documents/public_
statements/1544152/wilson_concurring_statement_dte_9-13-19.pdf.
302 Press Release, Dep’t of Justice, Justice Department Will Move to Signicantly Modify and Extend Consent Decree with
Live Nation/Ticketmaster (Dec. 19, 2019), available at https://www.justice.gov/opa/pr/justice-department-will-move-signi-
cantly-modify-and-extend-consent-decree-live [hereinafter Live Nation Release].
303 We Are Live Nation, Live Nation, https://www.livenationentertainment.com/ (last visited Dec. 20, 2019).
304 Live Nation Release, supra note 302.
305 Id;. Unopposed Mot. to Reopen Proceedings, United States v. Ticketmaster Entertainment, No. 1:10-cv-00139-RMC
(D.D.C. Dec. 19, 2019), ECF No. 16.
306 Pl. United States’ Mem. in Support of Mot. to Modify Final J. and Enter Amended Final Judgment at 6–10, United States
v. Ticketmaster Entm’ Inc., et al., No. 1:10-cv-00139 (D.D.C. Jan. 8, 2020), available at
https://www.justice.gov/atr/case-document/le/1233396/download [pp. 9–13 of the PDF].
307 Proposed Am. Final J. (Redlined), Ex. 1 to Mot. to Modify Final J. and Enter Am. Final J. [Dkt. No. 22], United States
v. Ticketmaster Entertainment Inc. No. 1:10-cv-00139 (D.D.C. Jan. 8, 2020) [hereinafter Proposed Amended Final
Judgment]; Live Nation Release, supra note 302.
308 Proposed Amended Final Judgment, supra note 307; Live Nation Release, supra note 302.
309 Proposed Amended Final Judgment, supra note 307; Live Nation Release, supra note 302.
310 Proposed Amended Final Judgment, supra note 307; Live Nation Release, supra note 302.
311 Press Release, Dep’t of Justice, Canon Inc., Toshiba Corporation Agree to Pay $5 Million for Violating Federal Antitrust
Laws (June 10, 2019), available at https://www.justice.gov/opa/pr/canon-inc-toshiba-corporation-agree-pay-5-million-
violating-federal-antitrust-laws [hereinafter Toshiba Release]; Press Release, Fed. Trade Comm’n, Canon Inc., Toshiba
Corporation Agree to Pay $5 Million for Violating Federal Antitrust Laws (June 10, 2019), available at https://www.ftc.gov/
news-events/press-releases/2019/06/canon-inc-toshiba-corporation-agree-pay-5-million-violating.
312 Complaint ¶¶ 5-9, United States v. Canon Inc., No. 1:19-cv-01680 (D.D.C. June 10, 2019), available at https://www.ftc.
gov/system/les/documents/cases/canon-toshiba_complaint_6-10-19.pdf.
313 Id. ¶¶ 8-9.
314 Toshiba Release, supra note 311.
315 Proposed Final J., United States v. Third Point Oshore Fund, LTD, No. 1:19-cv-02593 (D.D.C. Aug. 28, 2019). Note
that the case was brought in court by the Justice Department Antitrust Division on behalf of FTC.). See also Michael B.
Bernstein et al., Investment Fund Family Pays $609K Penalty for Missed HSR Filings Related to Stock Conversions,
Arnold & Porter (Sep. 6, 2019), https://www.arnoldporter.com/en/perspectives/publications /2019/09/investment-fund-
family-pays-609k-penalty.
316 Complaint ¶¶ 7-8, United States v. Third Point Oshore Fund, LTD, No. 1:19-cv-02593 (D.D.C. Aug. 28, 2019), available
at https://www.ftc.gov/system/les/documents/cases/181_0087_tp_complaint.pdf [hereinafter Third Point Complaint].
317 Competitive Impact Statement at 3-4, United States v. Third Point Oshore Fund, LTD, 1:19-cv-02593 (D.D.C. Aug. 28,
2019), available at https://www.justice.gov/opa/press-release/le/1198306/download.
318 16 C.F.R. § 802.21 (2019). The § 802.21 exception allows a person or entity that acquired voting securities from a
specic issuer, led a notication under the HSR act, and observed the waiting period to then “acquire additional voting
securities of the same issuer for ve years after the end of the waiting period,” so long as the combined voting shares
do not exceed a higher specied HSR threshold than the one that has already been notied. Here, FTC argued that
Third Point’s later acquisition of DowDuPont shares did not came from the same issuer as its earlier Dow shares, as
DowDuPont is a dierent entity under the HSR rules (such as by competing in additional lines of business compared to
Dow), and therefore the § 802.21 exception does not apply. Third Point Complaint, supra note 319, at 8.
319 Third Point Complaint, supra note 319, at 8.
320 Peter G. Danias et al., Third Point Settles with the FTC over Improper Reliance upon the “Investment-Only” Exemption,
Arnold & Porter (Sep. 2, 2015), https://www.arnoldporter.com/en/perspectives/publications/2015/ 09/20150902_corpo-
rate_alert_third_point_rea_12193.
| 43
321 Steves & Sons, Inc.,. v. JELD-WEN, Inc., 345 F. Supp. 3d 614, 682 (E.D. Va. 2018) 16CV545; Verdict Form, Steves &
Sons, Inc. v. JELD-WEN, Inc., No. 3:16-cv-0545 (E.D. Va. Feb. 15, 2016).
322 JELD-WEN, Inc.’s Renewed Mot. For Judgment As A Matter Of Law Against Steves & Sons, Inc., Steves & Sons, Inc.,
v. JELD-WEN, Inc., No. 3:16-cv-00545 (E.D. Va. Jan. 11, 2019); Karen M. Koenig, Jeld-Wen’s Bid to Overturn Antitrust
Verdict Denied, Woodworking Network (Mar. 15, 2019), https://www.woodworking network.com/news/woodworking-
industry-news/jeld-wens-bid-overturn-antitrust-verdict-denied.
323 Steves and Sons Wins Another Round in Court; Judge Enjoins JELD-WEN from Re-trying Lawsuit, Bus. Wire (Aug.
20, 2019), https://www.businesswire.com/news/home/20190820005199/en/%C2%A0Steves-Sons-Wins-Court-Judge-
Enjoins-JELD-WEN; Khorri Atkinson, Door Co. Fights Rival’s 4th Circ. Appeal Of Divestiture Order, Law 360 (Sep. 12,
2019), https://www.law360.com/competition/articles/1198317/door-co-ghts-rival-s-4th-circ-appeal-of-divestiture-order;
Nadia Dreid, DOJ Tells 4th Circ. Doormaker’s Divestiture Argument Sinks, Law 360 (Aug. 26, 2019, 8:00 PM)
https://www.law360.com/articles/1192165.
324 Brief for The United States Of America as Amicus Curiae in Support of Appellee Steves and Sons, Inc., at 9, Steves
& Sons, Inc., v. JELD-WEN, Inc., No. 19-1397 (4th Cir. Aug. 23, 2019), available at
https://www.justice.gov/atr/case-document/le/1197696/download.
325 Id., at 9-10.
