Antitrust Agency Insights: Developments at the US Antitrust Enforcement Agencies—Third Quarter 2022

Successfully navigating antitrust agency investigations requires a familiarity with Department of Justice and Federal Trade Commission processes, as well as insight into those agencies and their leaderships’ current priorities for enforcement and competition policy. This newsletter will provide periodic updates on both, offering an analytical look at how the antitrust agencies are approaching important competition issues and what current investigations may mean for potential future enforcement. We hope our experience—both inside and outside these agencies—will provide insights that help you make more informed decisions for your business.

Letter from the Editors

FTC continues focus on digital economy with challenge to Meta/Within deal

The last few years have brought increasing antitrust agency scrutiny of transactions in the digital economy. Among other actions, the Federal Trade Commission (FTC) just recently launched in-depth investigations into Amazon’s proposed acquisitions of One Medical¹and iRobot (maker of the Roomba vacuum),²and, in 2020, the FTC sued Facebook (now, Meta) for allegedly “maintaining its personal social networking monopoly through a years-long course of anticompetitive conduct” through its acquisitions of Instagram and WhatsApp.³In a recent challenge to Meta’s acquisition of VR app developer Within Unlimited, the FTC continues its focus on mergers and acquisitions in the tech industry. Notably, here the FTC expressed concern that the transaction eliminates potential competition from Meta—rather than from its acquisition target.

On July 27, 2022, after a 3-2 vote, the FTC filed a lawsuit in the US District Court for the Northern District of California to block Meta’s proposed acquisition of Within Unlimited, the developer of virtual reality (VR) fitness app Supernatural.⁴ The FTC argues that Meta is using this acquisition to avoid competition on the merits and instead “buy its way to the top[.]”⁵

The FTC alleges that the proposed transaction, which was initially announced on October 29, 2021, would substantially lessen competition, or tend to create a monopoly, in both the market for “VR dedicated fitness apps” and the market for “VR fitness apps” more broadly.⁶ According to the FTC, Within offers a “VR dedicated fitness app,” which is designed to allow users to exercise through a structured physical workout,⁷ while today, Meta offers only “VR fitness apps,” which “allow users to get a workout as a byproduct of their use” but do not have a “primary focus” on fitness.⁸ 

Despite the lack of a monopolization claim, the FTC argues that Meta’s competitive strategy is to gain control of apps while also controlling the app distribution platform.⁹ In its complaint, the FTC cites Meta’s past acquisitions in the VR space and the company’s own VR apps, describing Meta as a “key player at each level of the VR ecosystem.”¹⁰ The complaint heavily quotes internal Meta documents and notes a Mark Zuckerberg email to other Facebook executives, in which he states that acquisitions should be used “opportunistically[.]”

In contrast to prior transactions in which a larger firm is accused of seeking to eliminate competition from an upstart competitor, the FTC’s challenge here is based on the elimination of potential competition from Meta in the VR dedicated fitness app space. The FTC asserts that it is “reasonably probable” that Meta would have entered the VR dedicated fitness app market, which “would have the effect of substantially deconcentrating and increasing competition in the market.”¹¹ Elimination of potential horizontal competition between merging parties has not been the explicit focus of an FTC merger litigation since the FTC’s challenge of Steris/Synergy Heath, which the FTC lost.¹²

The FTC also asserts a reduction in competition for labor as an alternative theory of competitive harm.¹³ The FTC alleges that if Meta were to independently enter the VR dedicated fitness app market, its entry would “spur additional competition to attract the best employees,”¹⁴ but instead, the market will experience “less pressure to compete for the most talented app developers.”¹⁵ This focus on labor issues is consistent with other efforts by the FTC, including in both the merger and digital economy areas.¹⁶

In addition to these theories based on the elimination of potential competition, the FTC also asserts that the transaction will eliminate existing competition in the broader VR fitness app market. Specifically, the complaint alleges that Meta’s Beat Saber and Within’s Supernatural apps are competitors in the broader VR fitness app market, and “[t]his competition . . . leads to innovations, new features, and consumer choice—and it will be eliminated as a result of the Acquisition.”¹⁷ 

In response, Meta asserts that the FTC’s alleged “VR dedicated fitness app” product market is “artificial” and that it “had no plan to create its own VR fitness product.”¹⁸ Meta also argues that its Beat Saber is “quite different” from Within’s Supernatural, “including in its product characteristics, pricing, audience, and just about any other aspect one could identify.”¹⁹ According to Meta, the transaction is pro-competitive, as it will “improve and expand fitness offerings . . . and increase opportunities for existing and new third-party developers, all to the benefit of consumers, developers, and the overall VR ecosystem.”²⁰

The 3-2 vote was split along party lines, with Republican Commissioners Noah Phillips and Christine Wilson opposing the case. Further, it has been publicly reported that the FTC staff investigating the transaction did not support a challenge of the transaction.²¹

Nonetheless, the FTC’s challenge to Meta’s proposed acquisition of Within highlights the FTC’s continued focus on digital platforms and technology companies. A significant portion of the complaint discusses the network effects enjoyed by digital platforms, which has been a key theme in global antitrust enforcement in recent years.²² Additionally, while some critics have asserted that antitrust enforcement has fallen behind technological advancements, the FTC’s challenge in the VR space is consistent with statements by antitrust agency leadership focusing on digital markets and transactions that impact innovation. In recent testimony, FTC Chair Lina Khan stated that “the FTC continues to scrutinize digital markets, recognizing that distinct features of digital technologies have ushered in new market dynamics and business strategies that require us to update our enforcement approach.”²³ She also noted that the FTC “is taking steps to better capture the full set of ways in which mergers can harm competition. Central to this effort is placing greater weight on assessing both non-horizontal and forward-looking competitive harm.”²⁴

In the wake of continued focus on technology markets and digital platforms, parties should anticipate government scrutiny in these areas. Government reviews of these types of transactions have become longer, and parties may be required to provide more information to the antitrust agencies. In some cases, these reviews may delay transactions (in what Commissioner Phillips characterized as a “tax” on M&A),²⁵ as the agencies are using all of their tools to gather evidence with which to challenge transactions. Importantly, the FTC and DOJ will look for evidence of potential competition issues, especially in markets where innovation is key. Here, the FTC’s Within complaint cites to numerous ordinary-course documents that the FTC alleges discuss the proposed transaction as harming competition and stymieing innovation. Such documents are a red flag to enforcement agencies, and in future cases, similar documents are likely to feature as key documents. Parties should take care that documents discussing proposed transactions or business strategies are accurate and do not overstate the possible competitive effects of the deal.

FTC leadership announces reinvigoration of Robinson-Patman Act enforcement

Despite much criticism over the years, the Robinson-Patman Act, which prohibits price discrimination in certain circumstances, remains on the books. However, the threat of a Robinson-Patman action has largely come from private plaintiffs in recent years. Indeed, the FTC has not brought a challenge under the Robinson-Patman Act since 2000.²⁶

This may soon change: In a recent speech focused on a “return to fairness,” FTC Commissioner Alvaro Bedoya advocated for a renewed focus on Robinson-Patman Act enforcement. He noted that “[c]ertain laws that were clearly passed under what you could call a fairness mandate—laws like Robinson-Patman—directly spell out specific legal prohibitions. Congress’s intent in those laws is clear. We should enforce them.” Commissioner Bedoya’s calls for Robinson-Patman Act enforcement actions echo the FTC’s assertion in a recent policy statement that it can use the Act to challenge rebates paid to pharmacy benefit managers.²⁷ With this renewed focus, it is important for companies to consider risks under the Robinson-Patman Act and ensure that their compliance programs are up to date.

Update

On October 7, 2022, the FTC filed an amended complaint in its challenge to Meta’s proposed acquisition of Within.²⁸

Notably, the FTC’s amended complaint no longer includes theories of harm related to the broader “Virtual Reality (VR) fitness apps” market (including the FTC’s initial allegations that the transaction will eliminate existing competition in this market). In response, Meta stated that the FTC dropped the “key allegation” from its initial complaint, and Meta accused the agency of “changing its mind” after filing the initial complaint.²⁹ Meta also stated that “the FTC’s suit is based on ideology, not evidence,” and that the FTC’s remaining claims “continue to lack support in either the facts or the law.”³⁰

Trial in federal court is scheduled for December 2022, with the FTC’s administrative proceeding set to begin in January 2023.

Additional Agency Updates

FTC & DOJ Staffing Update

• FTC

  • On August 8, 2022, Commissioner Phillips announced that he will resign from the FTC in Fall 2022.
    • Read Commissioner Phillips' Statement

• DOJ

  • Rahul Rao joined the FTC’s Bureau of Competition as Deputy Director in September 2022.
    • Current Leadership
  • Maggie Goodlander joined DOJ’s Antitrust Division as Deputy Assistant Attorney General in September 2022.
    • Current Leadership

FTC Cases and Proceedings

• By a 5-0 vote, the FTC approved the final order settling claims regarding Medtronic’s acquisition of Intersect ENT. On June 30, 2022, the FTC finalized an order requiring Medtronic to divest Intersect’s subsidiary that makes ear, nose, and throat products.
  • Read the Press Release
• By a 3-2 vote, the FTC voted to challenge Meta’s proposed acquisition of Within Unlimited, a virtual reality (VR) studio. On July 27, 2022, the FTC filed suit in the US District Court for the Northern District of California alleging that the transaction would reduce competition in the market for VR dedicated fitness apps, as well as in the broader relevant market for VR fitness apps.
  • Read the Press Release
  • Read the FTC's Complaint
• ALJ dismisses FTC complaint alleging that Illumina’s acquisition of Grail lessened competition in violation of the antitrust laws. On September 1, 2022, the Administrative Law Judge (ALJ) rejected the FTC’s allegations that Illumina’s acquisition of Grail will lessen competition in the market for multi-cancer early detection (MCED) tests in violation of federal antitrust laws. The ALJ dismissed the FTC’s complaint and held that because Illumina was the only viable supplier of a necessary input for MCED tests prior to the acquisition, the evidence failed to prove that Illumina’s purported ability to raise prices, withhold supply, or decrease quality would be a function of the acquisition. FTC Complaint Counsel has filed a notice of appeal to the full Commission.
  • Read the FTC's Press Release
  • Read the ALJ's Decision
  • Read the FTC's Complaint
• By a 5-0 vote, the FTC approved the final order settling claims regarding EnCap’s acquisition of EP Energy. On September 14, 2022, the FTC finalized an order requiring EnCap to divest EP Energy’s business and assets in Utah to Crescent Energy Company.
  • Read the Press Release
• By a 4-0-1 vote, with Commissioner Phillips recused, the FTC, with 10 state Attorneys General, brought a suit against two pesticide manufacturers. On September 29, 2022, the FTC and a bipartisan coalition of 10 state attorneys general filed suit in the US District Court for the Middle District of North Carolina against pesticide manufacturers Syngenta Crop Protection and Corteva for allegedly paying distributors to keep them from selling their lower-priced generic products to farmers.
  • Read the Press Release
  • Read the FTC's Complaint
• New Mexico Physician Association settles allegations it violated 2005 FTC Order. On September 30, 2022, the FTC settled charges that the San Juan IPA violated a 2005 consent order based on allegations that the association facilitated agreements among competing member physicians to coordinate their pricing. The FTC asserts that San Juan violated that 2005 order by “negotiating or attempting to negotiate two price-related provisions with a payor; threatening to terminate a contract with a payor unless the payor agreed to speed up negotiations with providers who had made counter-offers; and encouraging member providers to deal with a payer only through San Juan.” As part of the settlement, San Juan IPA is required to pay a $263,000 civil penalty.
  • Read the Press Release

DOJ Cases and Proceedings

• Contractor pled guilty to rigging bids for public military contracts in Texas and Michigan. On July 13, 2022, John “Mark” Leveritt, a Texas military contractor, plead guilty to rigging bids for government contracts from at least May 2013 through April 2018. According to court documents, he conspired with others to rig bids in order to give the false impression of competition. AAG Kanter stated that bid rigging is a “top priority for [DOJ] and all members of the Procurement Collusion Strike Force.
  • Read the Press Release
• DOJ entered a consent decree resolving allegations that three poultry processors and a data consulting firm conspired to suppress worker pay at poultry processing plants. On July 25, 2022, DOJ settled allegations that Cargill Inc., Sanderson Farms Inc., and Wayne Farms LLC, together with data consulting firm WMS & Co. and its president, conspired for two decades or more to share information about wages and benefits and to collaborate on compensation decisions, suppressing competition in the labor markets for poultry processing. Without admitting liability, the parties agreed to a consent decree with DOJ, which requires the three poultry processors to pay $84.8 million in restitution to the workers allegedly harmed by their conduct and to submit to a compliance monitor for a term of 10 years. Under the consent decree, the data consulting firm and its president are prohibited from providing services involving confidential competitively sensitive information in any industry. Specifically in the poultry processing industry, they are prohibited from participating in non-public trade association meetings or participating in the poultry processing industry, except in limited circumstances. In connection with the consent decree, DOJ issued a Competitive Impact Statement on September 25, 2022 describing the allegedly anticompetitive conduct and further explaining the settlement terms.
  • Read the Press Release
  • Read the Complaint
  • Read the Competitive Impact Statement
• Two contractors pled guilty to participating in a conspiracy to rig bids on insulation contracts on August 3, 2022. One of the contractors also pled guilty to engaging in criminal fraud related to the insulation contracts. The parties are the sixth and seventh defendants to plead guilty in DOJ’s investigation into an alleged seven-year conspiracy to rig bids on insulation contracts in Connecticut.
  • Read the Press Release
• China International Marine Containers Group and Maersk abandon merger in face of DOJ scrutiny. DOJ investigated the proposed merger of two of the world’s four suppliers of insulated container boxes and shipping containers, which was announced on September 28, 2021 and abandoned on August 25, 2022. According to DOJ, “[t]he proposed transaction would have combined two of the world’s four suppliers of insulated container boxes and refrigerated shipping containers.”
  • Read the Press Release
• DOJ challenged Assa Abloy’s proposed acquisition of the Hardware and Home Improvement (HHI) division of Spectrum Brands. On September 15, 2022, DOJ filed a complaint in the US District Court for the District of Columbia alleging that the transaction threatens competition in the premium mechanical door hardware and smart lock markets.
  • Read the Press Release
  • Read the Complaint
• On September 17, 2022, DOJ signed a letter of agreement approving the merger of West Coast banks on the condition that the parties divest ten branches in California, Oregon, and Washington. The parties, Columbia State Bank and Umpqua Bank, announced the letter of agreement (LOA) in an SEC filing. DOJ also agreed to advise the Federal Reserve and the FDIC that DOJ is not adverse to approval of the Transaction if the divestitures are made consistent with the terms of the LOA.
  • Read Columbia State Bank's SEC Filing
  • Read Columbia State Bank's Summary of the LOA
• Judge declines to enjoin UnitedHealth’s proposed acquisition of Change Healthcare and requires divestiture. On September 19, 2022, a DC federal judge rejected DOJ’s allegations that the proposed acquisition is an illegal vertical merger that would give UnitedHealth the ability and incentive to use rivals’ data to raise prices and withhold innovations. The court held that the evidence at trial established that UnitedHealth would have to “uproot” its business model for the proposed transaction to substantially lessen competition. The court also rejected DOJ’s claim that the proposed acquisition is an illegal horizontal merger that would tend to create a monopoly in the sale of first-pass claims editing solutions and held that Change Healthcare’s divestiture of its subsidiary ClaimsXten, an insurance claims technology business, would “restore the competitive intensity lost because of the acquisition.”
  • Read the Press Release
  • Read the Decision
• Judge denies DOJ request to enjoin US Sugar Corp.’s proposed acquisition of Imperial Sugar. On September 23, 2022, a Delaware federal judge rejected DOJ’s allegations that the proposed acquisition would create a duopoly in the production and sale of refined sugar. The court rejected DOJ’s relevant market definition “because [DOJ’s] product market and geographic markets ignore the commercial realities of sugar supply in the US.” The court also highlighted the regulated nature of the sugar industry, noting that the transaction “must be viewed against the backdrop of the [United States Department of Agriculture’s] intimate involvement with the US sugar industry.” DOJ has appealed the court’s decision, but both the court and the Third Circuit have denied DOJ’s emergency motion for an injunction pending that appeal.
  • Read the Press Release
  • Read the Delaware Court Decision
  • Read the Order Denying an Injunction
  • Read the DOJ's Complaint
• First two defendants sentenced in conspiracy to rig bids on insulation contracts. On September 28, 2022, the first two defendants plead guilty in DOJ’s investigation into an alleged conspiracy to rig bids on insulation contracts in Connecticut (discussed above). Thomas F. Langan was sentenced to one year and a day’s imprisonment and his company, Langan Insulation LLC, was sentenced to a $150,000 criminal fine for its role in the schemes. Both defendants were also ordered to pay restitution to their victims.
  • Read the Press Release

Policy—FTC

• FTC votes 3-2 to authorize three omnibus compulsory process resolutions. On August 26, 2022, the FTC voted to authorize two new omnibus resolutions and to revise a third which was approved last year. The omnibus resolutions eliminate the need for FTC staff to seek full Commission authorization to use compulsory process in investigations regarding collusive practices, the car rental industry, and mergers & acquisitions. Commissioners Phillips and Wilson issued a dissenting statement that responded to the majority’s assertion that the resolutions “will not substantially change the multiple layers of checks and balances that are critical to the Commission’s oversight of investigations,” and noted instead that the “resolutions eliminate the only layer of Commission oversight concerning the use of compulsory process in the vast majority of the agency’s competition-related investigations.”
  • Read the Press Release
  • Read the Majority Statement
  • Read the Dissenting Statement
• FTC adopts policy statement addressing unfair, deceptive and anticompetitive practices in the gig economy. On September 15, 2022, the FTC issued an enforcement policy statement regarding efforts to protect gig workers from deceptive pay and hours commitments, unfair contract terms, and anticompetitive wage fixing and coordination between gig economy companies. The FTC committed to coordinating its consumer protection and competition enforcement efforts, as well as efforts across other government agencies, to protect gig workers.
  • Read the Press Release
  • Read the Policy Statement

Policy—DOJ

• AAG Kanter meets with National Farmers Union to discuss the state of competition in agriculture and strengthening antitrust enforcement. On September 12, 2022, AAG Kanter met with 30 farmers affiliated with the National Farmers Union (NFU) and reiterated that competition in agriculture is “critical,” noting DOJ’s enforcement actions in the sugar and poultry industries and interagency partnerships as efforts to protect competition.
  • Read the Press Release

Inter-Agency Initiatives

• The FTC and National Labor Relations Board enter into Memorandum of Understanding. On July 19, 2022, the FTC and National Labor Relations Board (NLRB) signed a Memorandum of Understanding (MOU) to strengthen the FTC’s and NLRB’s partnership to protect works from anticompetitive, unfair and deceptive practices. The MOU provided for information sharing between the agencies, including a system for referring cases to one another.
  • Read the FTC’s Press Release
• The FTC and DOJ issued a joint comment to the Federal Energy Regulatory Commission. On August 17, 2022, the FTC and DOJ submitted a comment to the Federal Energy Regulatory Commission (FERC) urging it not to restore a right of first refusal that would enable incumbent electricity transmission owners to block competitors from bidding to design, construct and own certain new interstate transmission facilities.
  • Read the FTC’s Press Release
  • Read DOJ’s Press Release
• The FTC and DOJ held the annual trilateral meeting with enforcers from Mexico and Canada. On September 13, 2022, the FTC and DOJ met with enforcers from Mexico’s Federal Economic Competition Commission and Canada’s Competition bureau to discuss current enforcement priorities and the current legal environment in each jurisdiction.
  • Read the FTC’s Press Release
  • Read DOJ's Press Release

FTC Speeches

• Chair Khan spoke at Fordham Annual Conference on International Antitrust Law & Policy. On September 16, 2022, Chair Khan gave remarks at the Fordham Annual Conference on International Antitrust Law & Policy, noting that “the rule of law” is a “core value at the center of the FTC’s antitrust agenda” and reiterating the FTC’s commitment to standalone Section 5 enforcement.
  •  Read Chair Khan’s Remarks
• Chair Khan testified before the Senate Judiciary Committee on the Judiciary’s Subcommittee on Competition Policy, Antitrust and Consumer Rights on September 20, 2022. Chair Khan discussed the FTC’s efforts to maximize efficiency of the agency’s resources, which includes working with DOJ to prevent unlawful consolidation, targeting anticompetitive conduct for maximum impact and preventing harm to workers.
  • Read Chair Khan’s Testimony
• Commissioners Phillips and Wilson issued dissenting statements before the Senate Judiciary Committee on the Judiciary’s Subcommittee on Competition Policy, Antitrust and Consumer Rights on September 20, 2022. Commissioners Phillips and Wilson disagreed with the assertion that the FTC’s merger enforcement was “once moribund but now revitalized,” noting that “[t]oday, the agency is challenging fewer mergers and entering into fewer consents than during the prior Administration.” 
  • Read the Dissenting Statement
• Commissioner Phillips spoke at the American Bar Association Antitrust In-House Section on September 20, 2022. Commissioner Phillips discussed the differing ideologies of antitrust enforcement at the FTC, particularly in merger enforcement. Looking to the future of the FTC’s antitrust enforcement efforts, Commissioner Phillips stated that he opposes rulemaking on unfair methods of competition (UMC) and expressed concerns that the FTC’s and DOJ’s new merger guidelines will hamper mergers that enhance competition.

  • Read Commissioner Phillips’ Remarks

• Commissioner Bedoya spoke about “Returning to Fairness.” On September 22, 2022 at the Midwest Forum on Fair Markets, Commissioner Bedoya stated that antitrust enforcement has improperly focused on efficiency and that the FTC should “return to fairness” and pursue enforcement under the Robinson-Patman Act.
  • Read the Speech
• Commissioner Phillips spoke in an interview with Law360 about his tenure at the FTC and his predictions for the agency’s future. In an interview published on September 23, 2022, Commissioner Phillips emphasized the importance of transparency and expressed concerns about the agency’s current tactic of “deliberately creating uncertainty” in merger investigations. He also foreshadowed an increase in merger litigation, as well as the potential for constitutional challenges as the agency seeks to expand its authority.
  • Read the Interview

DOJ Speeches

• AAG Kanter delivered “Respecting the Antitrust Laws and Reflecting Market Realities.” In his keynote speech at the Georgetown Antitrust Law Symposium on September 13, 2022, AAG Kanter stated that DOJ and FTC are drafting revised merger guidelines that focus on “two core values.” First, the guidelines aim “to better reflect the law as passed by Congress and interpreted by the Supreme Court,” and second, “to be more accessible to users inside and outside the agency analyzing competition in all its forms.”

  • Read the Speech

• AAG Kanter delivered “Solving the Global Problem of Platform Monopolization.” In his keynote speech at Fordham Annual Conference on International Antitrust Law & Policy on September 16, 2022, AAG Kanter noted that in today’s global digital economy, monopolization is “ascendant” and that the “collection of corporate power [] threatens our liberty.”
  • Read the Speech
• AAG Kanter testified before the Senate Judiciary Committee on the Judiciary’s Subcommittee on Competition Policy, Antitrust and Consumer Rights on September 20, 2022. AAG Kanter highlighted DOJ’s enforcement efforts in the past year and discussed the “importance of bringing difficult antitrust cases,” noting that “[i]mprovements to antitrust enforcement will not happen if the Antitrust Division is unwilling to challenge aggressively anticompetitive conduct and unlawful market consolidation.”
  • Read AAG Kanter’s Testimony

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.