• Court Orders American Airlines and JetBlue to Unwind Partnership. On May 19, a district court in Massachusetts ruled in favor of DOJ and required American Airlines and JetBlue to unwind their Northeast Alliance (NEA) partnership. Under the NEA, American Airlines and JetBlue had agreed to operate as one airline for most of their flights in and out of New York City and Boston. The court rejected American Airlines’ and JetBlue’s arguments that the alliance enabled them to better compete with United and Delta and found that this claimed procompetitive benefit of becoming a more powerful rival “arise[s] from a naked agreement not to compete with one another,” the sort of unreasonable restraint the Sherman Act is designed to prevent. Although JetBlue and American Airlines had “vigorously competed on everything from fares to the features they offered customers. The NEA changes all of that. It makes the two airlines partners, each having a substantial interest in the success of their joint and individual efforts, instead of vigorous, arms-length rivals regularly challenging each other….” The airlines have 30 days to unwind the partnership but can appeal the decision.

  • FTC Revives Conglomerate Theory in Amgen/Horizon Challenge. On May 16, the FTC filed a complaint in federal court seeking a preliminary injunction to block Amgen’s proposed $28 billion acquisition of Horizon Therapeutics. The FTC has not yet filed a complaint to initiate an administrative proceeding. This lawsuit is the first time in over four decades that a US antitrust agency has challenged a transaction based on a “conglomerate” theory of competitive harm – that is, a claim of harm to competition based neither on a current or future competitive relationship nor on a supplier-customer relationship between the parties. The FTC alleges that the merger could facilitate bundled discounts to exclude or marginalize future market entrants. The parties have indicated they intend to litigate the FTC’s challenge in court, and the judge has suggested a September trial with a decision to follow within a month. It remains to be seen how the court will respond to the FTC’s theory, and much will turn on whether the FTC can produce strong real-world evidence that the transaction may substantially lessen competition and a compelling explanation why antitrust authorities could not effectively challenge anticompetitive bundling when and if it happens post-transaction, rather than obtain an injunction blocking the transaction. For more information, please see our client alert.

  • DOJ Settles Antitrust Case Against Assa Abloy with Divestiture. On May 5, DOJ announced it had settled its challenge to Assa Abloy’s planned $4.3 billion acquisition of Spectrum Brand Holdings’ hardware and home improvement division. Under the terms of the proposed settlement, Assa Abloy must divest assets to Fortune Brands Innovations to address competitive concerns in markets for premium mechanical door hardware and smart locks used in residential and multifamily buildings. This is the first consent decree with a divestiture remedy that DOJ has entered into under the current DOJ administration, and it remains to be seen whether this consent decree – in the context of active litigation – signals some relaxing of DOJ’s stated position that it will rarely if ever agree to resolve competitive concerns through a consent decree rather than litigate.

  • Boston Scientific Revises Agreement to Acquire Stake in M.I. Tech. On May 24, Boston Scientific Corporation terminated its agreement to purchase a majority stake in M.I. Tech Co. Ltd., a non-vascular stent manufacturer, opting for a new agreement to purchase a considerably smaller minority stake. According to a representative for Boston Scientific, the change was made in light of regulatory hurdles faced by the companies. The FTC issued a statement on the change, indicating the transaction was abandoned “in response to investigations by FTC staff and our overseas enforcement partners.”

  • Study Shows US Antitrust Enforcement May Be Chilling Merger Activity. According to a Bloomberg study, the Biden Administration’s aggressive approach to antitrust reviews is chilling merger activity involving US companies based on concerns related to lengthy and expensive clearance processes and the risks of challenges. In the past year, antitrust agencies have filed complaints against a record 13 transactions, double the average of the previous five years. The agencies also claim credit for an additional 26 mergers that were abandoned in the face of antitrust investigations, including some that were never publicly announced. For observations regarding antitrust agency merger enforcement during the Biden Administration and potential ways that merger parties might respond to the new environment, please see our client alert.


  • New York Legislators Reintroduce 21st Century Antitrust Act, New Jersey Legislators Follow. On May 8, Deputy Majority Leader of the New York Senate Michael Gianaris reintroduced the 21st Century Antitrust Act (S6748), which would make sweeping changes to New York’s antitrust law, including (i) creating an “abuse of dominance” offense based loosely on EC law and giving the New York Attorney General rulemaking authority to effectuate the provision, (ii) requiring parties making an HSR merger notification to provide the notification to the New York State Attorney General “at the same time” the notice is filed with federal agencies, and (iii) banning businesses from entering non-compete agreements with workers and contractors. Versions of the bill introduced in 2021 and 2022 passed the New York Senate but failed in the State Assembly. On May 8, Majority Whip of the New Jersey Senate Troy Singleton introduced S3778, which would also create an “abuse of dominance” prohibition nearly identical to the New York proposal. A parallel bill has been introduced in the New Jersey Assembly.

  • FTC Chair Khan Urges Regulation of Artificial Intelligence. On May 3, Chair Khan published an article urging regulation of AI. She warned that “expanding adoption of AI risks further locking in the market dominance of large incumbent technology firms” given that dominant firms control key inputs, including cloud services, computing power and “vast stores of data.” Chair Khan also cautioned that AI could be used to set prices and facilitate collusive behavior and facilitate “precisely targeted price discrimination.” She said that “the FTC is well equipped with legal jurisdiction to handle the[se] issues” and would vigorously enforce the laws on “collusion, monopolization, mergers, price discrimination and unfair methods of competition” as implicated by AI.


  • EC Clears Microsoft/Activision Transaction Subject to Conditions. On May 15, the EC announced its decision to clear Microsoft’s $75 billion acquisition of Activision subject to 10-year commitments to grant free licenses to (i) EEA-consumers to stream through any cloud game streaming services current and future Activision PC and console games they have purchased, and (ii) cloud game streaming service providers to allow EEA-based gamers to stream any Activision Blizzard PC and console game. The EC determined that these commitments fully addressed its concerns about vertical foreclosure from the acquisition. The EC’s clearance comes two weeks after the UK CMA’s decision to block the transaction, which Microsoft said it would appeal, and during the pendency of an FTC challenge to the transaction, which is in administrative litigation.

  • UK Government Publishes Digital Markets, Competition and Consumers Bill. On April 25, the UK government published the Digital Markets, Competition and Consumers Bill (Bill). The UK Competition and Markets Authority has described it as a “flagship bill that provides the CMA with new powers” and said that the Bill “has the potential to be a watershed moment in the way we protect consumers in the UK and the way we ensure digital markets work.” In many ways, the Bill resembles the European Union’s Digital Markets Act which imposes enhanced regulatory obligations on certain big tech companies. But the 388-page Bill goes further by amending the UK’s merger control regime and consumer protection law and widening the CMA’s investigatory powers. The Bill will become effective only if both Houses of Parliament approve, and amendments are likely. For more information, please see our client alert.