United States: Antitrust Agency Insights: Developments At The US Antitrust Enforcement Agencies—August 2019

Last Updated: August 6 2019
Article by Sonia Kuester Pfaffenroth and Peter J. Levitas

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

Large Technology Companies Are Under Increased Scrutiny

Large digital platforms are under increased scrutiny from legislators, presidential candidates, and the antitrust agencies. For example, the House Judiciary Committee has launched a "top-to-bottom" review of digital competition. Senator Amy Klobuchar has introduced legislation to modify merger review standards, and Senator Elizabeth Warren has released a plan to "break up big tech" and set new rules for the behavior of digital platforms. Other candidates for the Democratic nomination have voiced support for similar proposals.

Leaders from both agencies have expressed the view that existing antitrust standards are flexible enough to address potentially anticompetitive conduct by platform companies. Nonetheless, agency leaders have promised greater scrutiny and committed additional investigative resources to the technology sector, particularly with regard to digital platform competition. Both agencies have held hearings or public workshops on digital competition issues. The FTC has launched a Technology Task Force to investigate conduct and acquisitions in technology markets. And the DOJ just announced a review of the business practices of market-leading online platforms.

This increased interest and the allocation of additional resources to technology competition issues may already be leading to more investigations, and if the antitrust agencies are concerned about competition in particular markets, they may be more inclined to dig deeper and investigate longer in these market segments. Of course, additional scrutiny does not necessarily mean that new enforcement actions will materialize, but it is worth watching carefully to see whether any new challenges develop under the current framework, and whether that framework itself is adjusted either by lawmakers here or around the world.

DOJ Changes Policy on Compliance Programs in Criminal Enforcement

AAG Makan Delrahim has announced a new approach in criminal investigations to incentivize "effective" corporate antitrust compliance programs. In practice, this involves the DOJ (1) crediting compliance programs at the charging stage, (2) clarifying how the Antitrust Division evaluates compliance programs at the sentencing stage, and (3) publishing a guidance document to explain how prosecutors will evaluate compliance programs at both of those stages. The new policy allows companies with antitrust compliance programs deemed "effective" under the guidance document that have not obtained leniency under the Antitrust Division's existing Corporate Leniency Policy to be eligible for deferred prosecution agreements.

It is not yet clear how much impact this change will have on enforcement. The current model already provides substantial incentives for cooperation. Moreover, because a key consideration of the "effectiveness" of a compliance program is early detection and prompt self-reporting, beneficiaries of this new policy are likely corporations that may already have been early cooperators. This new approach does, however, raise the possibility of deferred prosecution for companies that discover a violation and promptly self-report, but are not the "first in the door" as would be necessary to qualify for leniency.

ADDITIONAL AGENCY UPDATES

Cases and Proceedings

Qualcomm Litigation

  • District Court orders permanent injunction and enters judgment in favor of FTC. On May 21, 2019, the Northern District of California ruled that Qualcomm's modem chip licensing practices violated the antitrust laws and ordered a permanent injunction. Several weeks before the ruling DOJ recommended that the court hold an evidentiary hearing prior to imposing a remedy. The FTC opposed DOJ's recommendation and the court imposed relief without holding a separate hearing. Qualcomm has filed an appeal with the Ninth Circuit.
  • FTC leadership split over Qualcomm decision. Commissioner Rohit Chopra issued a statement praising the Qualcomm decision as a "huge victory for every consumer who uses a smartphone," and Commissioner Rebecca Kelly Slaughter described the district court opinion as "a thorough accounting of the calculated and pervasive illegal actions [by] Qualcomm." Similarly, Bureau Director Bruce Hoffman called the decision "an important win for competition." In contrast, Commissioner Christine Wilson published an op-ed on May 29, 2019 expressing disagreement with the FTC legal theory and encouraging "higher courts to reconsider the wisdom of the judge's conclusions."
  • DOJ files second Statement of Interest in Qualcomm litigation supporting stay pending appeal. After the Qualcomm district court denied Qualcomm's request for a stay of the injunctive relief pending appeal, Qualcomm sought a stay from the Ninth Circuit. The DOJ filed a statement of interest in the Ninth Circuit to support Qualcomm's motion. The Department argued that Qualcomm has a strong likelihood of success on the liability and remedy questions. Under Secretary of Defense for Acquisition and Sustainment Ellen M. Lord and Department of Energy Chief Information Officer Max Everett submitted declarations in support of the DOJ filing.

Merger Enforcement

  • Administrative Law Judge upholds FTC challenge of consummated acquisition of Freedom Innovations by Otto Bock. Otto Bock and Freedom Innovations, two medical device manufacturers that produce lower-limb prosthetics, closed their transaction in September 2017. The FTC filed a challenge several months later, arguing that the transaction harmed competition in the market for prosthetic knees equipped with microprocessors. On May 7, 2019, the FTC Administrative Law Judge agreed and ordered the parties to divest Freedom Innovation's assets. The parties have appealed the decision to the full Federal Trade Commission.
  • DOJ imposes conditions on Amcor acquisition of Bemis. On May 30, 2019, the DOJ announced that Amcor agreed to divest its medical flexible packaging assets to resolve DOJ's concerns that the transaction would reduce the number of suppliers in that space from three to two.
  • FTC and Colorado AG impose conditions on UnitedHealth's acquisition of DaVita DMS. On June 19, 2019, the FTC announced that the parties agreed to divestitures to address the agency's concerns about horizontal and vertical effects in managed care provider organization services and Medicare Advantage health plan markets in the Las Vegas area. Chairman Simons recused himself, and the Commissioners split 2-2 on whether to sue over potential vertical effects in markets in Colorado. Commissioners Rebecca Kelly Slaughter and Rohit Chopra agreed to support the consent agreement without remedies in Colorado because the Colorado AG imposed conditions separately. The Colorado remedies addressed two vertical relationships, requiring UnitedHealthcare to lift an exclusive arrangement with Centura Health (a hospital and provider network) and requiring DaVita to extend their agreement with Humana.
  • DOJ files to prevent transaction between printers. On June 20, 2019, the DOJ sued to block Quad/Graphics Inc.'s acquisition of LSC Communications Inc. alleging that the parties are the "only two significant providers of magazine, catalog, and book printing services." On July 23, 2019 the parties abandoned the transaction.
    • Read the Press Release announcing the challenge (with links to relevant filings)
    • Read the Press Release announcing the transaction was abandoned
  • DOJ requires divestitures in merger among defense contractors. In order to address DOJ concerns that Harris Corporation and L3 Technologies are the only two suppliers to the Department of Defense of night vision devices (and image intensifier tubes, an essential component in night vision devices), the parties agreed to divest Harris' night vision business.
  • Eighth Circuit upholds preliminary injunction blocking physician group transaction. The FTC and North Dakota AG jointly challenged the acquisition of Mid Dakota Clinic by Sanford Health in June 2017, alleging that the merger of these two physician groups would substantially lessen competition for physician services in several geographic markets. The District Court granted a preliminary injunction in December 2017, and the parties appealed. The Eighth Circuit upheld the preliminary injunction on June 13, 2019. On July 9, 2019, the FTC announced that the parties had abandoned the transaction.
  • DOJ issues closing statement ending investigation into insurance acquisition. On June 18, 2019, the DOJ announced that it will not challenge the proposed acquisition of Vantage Holdings by Blue Cross Blue Shield of Louisiana because it does not believe that the deal would substantially lessen competition for individual health plans.
  • FTC requires divestitures in Quaker Chemical's acquisition of Houghton Int'l. The FTC raised concerns that the transaction would cause a merger-to-monopoly in the North American market for aluminum hot rolling oil (AHRO) and a substantial reduction in competition in the North American market for steel cold rolling oil (SCRO). Quaker agreed to divest Houghton's AHRO and SCRO products (as well as products used in conjunction with AHRO and SCRO) to an upfront buyer.
  • DOJ imposes conditions on Sprint/T-Mobile merger. The DOJ and five state attorneys general reached a settlement with Sprint and T-Mobile. As a condition of the settlement, the parties will divest Sprint's prepaid mobile wireless service business to Dish Network, including access to cell sites and retail locations. Dish will have access to the T-Mobile system for seven years while it builds its own 5G network. A separate challenge by several state attorneys general led by New York and California is still pending.
  • DOJ imposes divestitures upon Nexstar's acquisition of Tribune. The DOJ along with three state attorneys general announced that Nexstar Media Group Inc. and Tribune Media Company agreed to divest broadcast television stations in thirteen local markets to ameliorate enforcers' horizontal concerns.

Criminal Enforcement

  • DOJ secures guilty pleas in financial bid rigging case. On May 10, 2019, the DOJ announced that broker-dealer Banca IMI Securities Corporation had pled guilty to a bid-rigging conspiracy for financial instruments known as American Depository Receipts. Banca IMI was sentenced to a $2 million fine. On June 27, 2019, the DOJ also announced a guilty plea with Banca IMI's former head of securities lending.
  • Heritage Pharmaceuticals admits to price fixing and settles related False Claims Act allegations. On May 31, 2019, the DOJ announced that Heritage had agreed to a three-year deferred prosecution agreement "under which Heritage admits that it conspired to fix prices, rig bids, and allocate customers for glyburide," accepts a $225,000 criminal penalty, and commits to ongoing cooperation. Separately, Heritage settled related civil FCA allegations by agreeing to pay another $7.1 million.
  • Gennex Media pleads guilty to price fixing charges. As part of the DOJ's ongoing investigation into price fixing of online promotional products, Gennex Media and its president, Akil Kurji, signed a plea agreement admitting that they participated in a conspiracy to fix prices of products such as wristbands, lanyards, temporary tattoos and buttons sold online between May 2014 and June 2016. Gennex was sentenced to pay $752,717 in criminal fines while Kurji was sentenced to eight months in custody, three years supervised release, and $20,000 in criminal fines.
  • DOJ secures guilty pleas from another heir location services company. On July 10, 2019, the DOJ announced that Kemp & Associates and co-owner Daniel Mannix pled guilty to allocation of customers with another heir location services company. Kemp & Associates agreed to pay $1.53 million in criminal fines while Mannix agreed to pay nearly $78,000 in criminal fines; the court will determine whether and for how long Mannix is incarcerated.
  • DOJ secures guilty plea from insulation contractor on antitrust and fraud charges. Paul M. Camara, Jr. pled guilty to big rigging and criminal fraud on July 17, 2019. The president and co-owner of a Connecticut insulation contractor admitted participating in a scheme under which "conspirators discussed prices and agreed on bids that inflated prices to their customers by at least 10%."

DOJ Amicus Activity & Other Third-Party Filings

  • DOJ files Amicus with Seventh Circuit regarding the Act of State doctrine. The DOJ filed an amicus brief in Mountain Crest v Anheuser-Busch, No. 3:16-cv-00595 (7th Cir.) on May 8, 2019. The district court previously ruled that an alleged conspiracy by beer producers to exclude competition in Ontario was protected by the Act of State doctrine because it involved an agreement with the Ontario government. The DOJ argued that the district court's ruling was correct insofar as it protected agreements between private parties and a government board but was improper insofar as it extended protection from antitrust scrutiny for separate agreements solely among the private parties.
  • DOJ argues as Amicus before Federal Circuit regarding the Noerr-Pennington doctrine. The FTC and DOJ jointly filed a 2018 amicus brief in Intellectual Ventures v Capital One Financial, and Deputy Assistant Attorney General Michael Murray participated in oral argument on June 3, 2019, arguing in both instances that Noerr-Pennington does not protect anticompetitive patent acquisitions.
  • DOJ intervenes in private no-poach settlement. On May 20, 2019, private parties filed a settlement with the United States District Court for the Middle District of North Carolina that prohibits Duke University from engaging in no-poach agreements for five years. DOJ filed an unopposed motion to intervene and join the settlement so that it can enforce an injunction against the university if Duke violates the settlement. The Court has granted the DOJ's motion.
  • DOJ provides views to district court on the scope of SDOAA. On June 26, 2019, the DOJ filed a Statement of Interest arguing for a narrow interpretation of the Standards Development Organization Advancement Act of 2004, which provides an exemption from per se antitrust scrutiny (and from treble damages liability) for "standards development activity" by standard setting organizations. The DOJ argued that the court should interpret the SDOAA exemption as an affirmative defense and require a clear showing that the party qualifies as a standard-setting organization.
  • DOJ seeks to offer views on McCarran-Ferguson doctrine. The DOJ requested to participate in an upcoming hearing on a motion to dismiss in a private antitrust litigation. The DOJ argued that defendant insurance companies "advanced an overly broad reading of the McCarran-Ferguson antitrust exemption that is contrary to Supreme Court precedent and that would deny Florida consumers of health insurance the protections of federal antitrust law."
  • DOJ files Statement of Interest advising against lost tax revenue as a basis for standing. In Oakland v. Oakland Raiders, the DOJ argued that lost tax revenue does not provide standing for the City of Oakland because (1) the interest in collecting taxes is beyond the scope of "protected interests" contemplated by the language of the Clayton Act and (2) tax losses are "entirely derivative of the harm to market participants" and finding standing in these circumstances would deter potentially procompetitive behavior.

Other Enforcement

  • Canon and Toshiba agree to pay $2.5 million each to settle claims that the companies violated the HSR Act. In a complaint filed on June 10, 2019, the DOJ alleged that Canon and Toshiba circumvented the HSR waiting period for the sale of Toshiba subsidiary TMSC. DOJ argued that Canon obtained beneficial 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. DOJ alleged that the first transaction was designed to avoid an HSR filing and thus violated the HSR waiting period and reporting rules. The parties agreed to settle the claims for $2.5 million each. On June 27, 2019 the European Commission imposed a €28 million fine on Canon related to the same alleged conduct.
  • Five broadcast companies settle charges of improper information sharing. DOJ announced on June 17, 2019, that CBS, Cox, Scripps, FOX and TEGNA will settle allegations that they unlawfully shared information about revenue pacing (which compares the revenues booked for a certain time against the same time the year before) and sales. The DOJ previously settled with seven television broadcasting companies regarding similar conduct.

Policy

  • FTC submits comments on FDA Guidance for Nonproprietary Naming of Biological Products. On May 6, 2019, the FTC staff submitted its third comment to the FDA on proposed industry guidance related to naming biological products. The FDA proposal would add a distinguishable suffix to the nonproprietary name of biosimilar and interchangeable products approved after January 2017. The FTC comment states that "disparate treatment and the differentiated naming of biosimilar products would reduce biosimilar competition in the United States," because it would create two classes of biological products and limit or weaken new entry by creating potential misperception of quality differences and substitutability.
  • DOJ to review ASCAP and BMI consent decrees. As part of its ongoing effort to review outstanding decrees, the DOJ announced on June 5, 2019 that it would review its 1941 consent decrees with two music copyright licensors—The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI). These two consents have regulated the licensing prices and practices of a large portion of U.S. music for over seventy-five years.
  • FTC hosts workshop on Certificates of Public Advantage. "A Health Check on COPAs" was held on June 18, 2018 to "discuss empirical research on the effects of COPAs, and practical experiences with COPAs."
  • FTC split over its power to address drug prices under Section 5. Congress requested that the FTC provide a report "on the use of the FTC's standalone authority under Section 5 of the Federal Trade Commission Act to address high pharmaceutical prices." In its report the Commission expressed the view that any attempt to utilize its Section 5 authority "untethered from accepted theories of antitrust liability . . . is unlikely to find success in the courts." Commissioners Chopra and Slaughters published a separate statement that criticized the report for "not fully outlin[ing] the contours of Section 5 of the FTC Act as they relate to pricing practices under these specific circumstances" and advocating that the FTC "carefully examine and aggressively employ new ways to utilize our enforcement tools."
  • Antitrust agencies update merger filing form. On June 27, 2019, the FTC and DOJ announced procedural changes to the Hart-Scott-Rodino Notification and Report Form. The form already requires that parties report their revenues according to the 6-digit North American Industry Classification System (NAICS) codes that are used by the Census Bureau. Beginning this fall all parties must use the updated 6-digit NAICS codes and also use the Census Bureau's new 10-digit North American Product Classification System (NAPCS) codes.

Speeches

  • Delrahim reiterates DOJ's new IP perspective at OECD. Before the OECD on June 6, 2019, Assistant Attorney General Delrahim advocated once again for his "New Madison Approach" to issues at the intersection of antitrust and intellectual property. Delrahim emphasized the DOJ's focus on concerted action among licensee-implementors in the standard-setting context and reiterated DOJ's perspective that "violating a FRAND commitment, by itself, should not give rise to an antitrust claim."
  • DOJ says imposing fines in civil cases may be a useful tool. On May 7, 2019, Principal Deputy Assistant Attorney General Andrew Finch suggested that the imposition of fines in monopolization cases might be appropriate in situations where the remedy is imposed many years after the conduct has occurred. Finch argued that in such cases divestiture would be "risky" and thus a fine might be required to provide sufficient relief and deterrence.
  • DOJ discusses investigation of technology startup acquisitions. Before the OECD on June 3, 2019, Principal DAAG Andrew Finch argued that it can be difficult to assess competition issues where large technology platforms acquire small start-ups because start-ups may not create or retain documents clearly describing future competitive strategies. On June 11, 2019, Acting DAAG for Economics Jeffrey Wilder noted that DOJ would consider analyzing acquisitions of start-ups by large platforms under the rubric of attempted monopoly maintenance, in addition to conducting a merger analysis.
  • DOJ discusses antitrust enforcement in the digital economy. AAG Makan Delrahim argued that the antitrust laws as they currently exist can address competition issues in digital markets.

International Cooperation

  • International Competition Network (ICN) agrees to Recommended Practices for Investigative Process. In May 2019, the DOJ announced that ICN participants had agreed to the "Recommended Practices for Investigative Process," a set of guidelines and norms designed to ensure procedural due process.
  • G7 competition authorities release Common Understanding on Competition and the Digital Economy. The Common Understanding document describes shared principles for enforcement in the digital economy, including the promotion of competition and international cooperation. The FTC and DOJ helped draft the document and both agencies released statements supporting it. The G7 statement also emphasized the shared view of the signatories that existing antitrust laws are sufficiently flexible to address enforcement in the digital economy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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