This is the second edition of The Antitruster newsletter, WilmerHale’s bi-weekly newsletter on the latest antitrust and competition developments in the US and abroad. Read our other recent publications.

Merger Enforcement

  • FTC Democrats Issue Statement Regarding Merger Surge. On November 8, FTC Chair Lina Khan and Commissioner Rebecca Kelly Slaughter issued a joint statement following submission of the agency’s FY 2020 Hart-Scott-Rodino annual report. The statement observed that, despite the COVID-19 pandemic, the FTC brought more merger enforcement challenges in 2020 than it had in any single year since 2001. Moreover, the FTC anticipates receiving more than 3,500 merger filings before the end of 2021—roughly a 70% increase over the average number of filings received in recent years. Khan and Slaughter suggested that the initial 30-day waiting period is “crippling” the agency’s tight resources and that the FTC does not have enough time to properly investigate some transactions. As a response to the increase in filings, the FTC has been issuing pre-consummation “warning letters” to alert parties that the FTC may continue to investigate the transaction post-closing. For more information, see our prior blog post.

  • FTC Implements Prior Approval Requirements in Three Divestiture Orders. Following the FTC’s announcement on October 25, 2021, that it would implement a “prior approval” policy, the FTC has begun to include provisions requiring parties to obtain the FTC’s prior approval for future transactions involving markets that were the subject of the current consent decree. Two recent examples provide initial clues as to how the FTC may apply its policy in practice:

    • ANI/Novitium. On November 10, the FTC announced a proposed order in connection with ANI Pharmaceuticals’ acquisition of Novitium Pharma, requiring divestiture of two generic drugs as well as prior approval from the FTC for 10 years for any acquisition by the merged company in any interest in the divestiture product areas. The prior approval provision also extends to generic erythromycin and ethylsuccinate granules for oral suspension, a non-divestiture product. The FTC explained that although only ANI sold erythromycin/ethylsuccinate at this time, Novitium held an unexecuted option to buy a competing product from a third party.

    • The Golub Corp./Tops Market. On November 9, the FTC announced a proposed order in The Golub Corp. (which owns the Price Chopper chain) and Tops Market merger. The order requires divestiture of 12 Tops supermarkets across certain regions and prior approval for any acquisition by the merged company of any interest in a facility that has operated as a supermarket in any of the relevant geographic markets for the next 10 years.

Conduct Enforcement

  • FTC Commissioner Slaughter Promotes Integration of FTC’s Antitrust and Consumer Protection Enforcement. On November 9, Commissioner Rebecca Kelly Slaughter spoke on a panel addressing the antitrust bar and advocated for a “whole-agency approach,” whereby the FTC would bring both its antitrust and consumer protection authority to common problems. She said that one “obvious area” in which to apply such an approach is addressing the effect of data abuses on competition.

Hill Updates

  • Jonathan Kanter Confirmed to DOJ in Bipartisan Vote. On November 16, the Senate confirmed Jonathan Kanter’s nomination to be Assistant Attorney General of the Antitrust Division of the Department of Justice with a 68-29 vote.

  • Klobuchar, Cotton Introduce Bill Targeting Digital Platform M&A Activity. On November 4, Senators Amy Klobuchar (D-MN) and Tom Cotton (R-AK) introduced S. 3197, the Platform Competition and Opportunity Act—a companion to a House bill of the same name, with some differences, including how the term “covered platforms” is defined. The bill would prevent “covered platforms” from acquiring rivals or nascent competitors and from engaging in transactions that would strengthen or expand the platform’s market position, unless the platform could affirmatively demonstrate the transaction is not anticompetitive.

  • Senator Mike Lee Publicly Criticizes FTC Leadership. On November 9, Senator Mike Lee (R-UT) said in a speech that antitrust attorneys have complained to his office regarding “overreach” by the FTC. He cited examples of FTC staff requesting information from merging parties regarding union membership and environment and social governance policies, which depart from historic FTC practices. He also expressed concern over a “brain drain” at the FTC, with staff members departing for positions at private law firms. FTC Commissioner Christine Wilson expressed similar concerns last week in a speech made at the American Bar Association Fall Forum conference; she described the current treatment of FTC staff as “reprehensible.” Commissioner Wilson noted that the tense environment at the FTC has led to a number of staff departures.

Europe

  • European Court Upholds Google Self-Preferencing Fine. On November 10, the EU’s General Court upheld the Commission’s imposition of a €2.4 billion fine against Google in 2017 for allegedly giving preferential treatment to its own price-comparison shopping service over rival services. The court said, “By favouring its own comparison shopping service on its general result page through more favorable display and positioning . . . Google departed from competition on the merits.” Google can appeal the decision to the EU’s highest court—the Court of Justice.