2020: Remote work with real results

Sometime in the future, when we look back on the year that was 2020, it is likely that we will want to remember the good things that happened. And in the world of FTC antitrust enforcement, a lot of good things happened last year. In fact, any attempt to compile a list of the top 10 couldn’t do justice to the incredible work of Bureau of Competition staff and their unprecedented set of accomplishments in this 12-month span, which I’ve highlighted before. So instead, here is a list of ten “things that happened in 2020” that made this year especially memorable, and, in some cases, historic.

1. The pivot to full-time telework. Many of us will remember March 13 as the day we left our offices for the last time in 2020. Since then, Bureau staff have done their jobs almost entirely from places other than the office—from the dining room table (amid crumbs and papers), from the back porch (with accompanying birdsong), or from an attic office (with boats as the backdrop). While the transition to working remotely was virtually seamless, Bureau staff have faced the challenges of juggling remote work and other obligations with courage and humor. And we always appreciated the impromptu visits of family and furry friends on those Zoom calls.
    
2. The debut of HSR e-filing. In another first, starting on March 17, the Premerger Notification office set up an e-filing system for Hart-Scott-Rodino premerger filings. Thanks to the incredible work of the Commission’s IT team and PNO, the technology held up, and we have been able to process HSR filings without interruption. And that’s a good thing because, after a significant drop in merger filings from April to July, merger filings are at historic levels. In fact, in November, we processed 424 HSR filings, a monthly record not seen since Congress raised the filing thresholds back in 2001. (On our wish list for 2021: making temporary e-filing permanent.)
    
3. An unprecedented number of merger suits. From our first merger challenge on January 3 to our most recent one on December 8, the Commission authorized the Bureau to seek to block or undo an unprecedented nine mergers. While the number alone is impressive, so is the variety of markets we examined: from police body cameras (Axon/VieVu) and Powder River Basin coal (Peabody/Arch Coal) to online rental advertising (CoStar/RentPath) and e-cigarettes (Altria/JUUL). We challenged three hospital mergers (Jefferson/Einstein, Methodist/Tenet, and Hackensack/Englewood), and two razor mergers (Edgewell/Harry’s and P&G/Billie). On top of these nine litigation matters, we settled even more – twelve – and another ten mergers were abandoned after we started our investigation. All in all, a banner year for merger enforcement.
    
4. Tackling anticompetitive conduct of all types. The Bureau staff built on its stunning track record of aggressive and innovative non-merger enforcement. In January, joined by a number of state attorneys general, we charged Vyera Pharmaceuticals, and defendants Martin Shkreli and Kevin Mulleady, with an elaborate anticompetitive scheme to preserve a monopoly for the life-saving drug, Daraprim. In December, the FTC and 48 state and territorial attorneys general charged Facebook with illegally maintaining its personal social networking monopoly through a years-long course of anticompetitive conduct and are seeking to unwind its acquisitions of Instagram and WhatsApp. (This year, we are especially grateful to our state partners for their support and collaboration.) Also, in a case that would hardly be viewed as garden variety anticompetitive conduct, the Commission challenged agreements among three operators of rent-to-own stores in which the companies swapped customer contracts. The case is a reminder that the Commission will always be on the lookout for business practices that cause real hardship for consumers who are already struggling to make do on a limited budget. 
    
5. Getting the hang of virtual investigations and trials. As lawyers and courts across the country adjusted to limited in-person proceedings, Bureau staff learned to navigate the unique challenges of collecting and presenting evidence in accordance with Commission and local court rules. For instance, some members of our Peabody/Arch Coal team flew to St. Louis, while others on the team tried the case virtually from D.C. Our Jefferson/Einstein team participated in a trial that combined in-person and virtual aspects, while also facing the challenges of working with witnesses in the health care industry who were also tirelessly working to care for and protect the public through the pandemic. Here, at the beginning of 2021, BC litigation teams are prosecuting multiple cases in federal court, most at the district court level, while other teams are preparing for administrative trials.
    
6. Taking order obligations seriously. This year and every year, the Bureau’s Compliance Division oversees dozens of competition orders issued by the Commission. Key to most merger orders is the Respondent’s obligation to divest assets in order to preserve the competition that would otherwise be lost due to their merger with a competitor. This year, the Commission obtained $3.5 million in civil penalties after Alimentation Couche-Tard and CrossAmerica Partners violated a 2018 order that required them to divest 10 retail fuel stations in Minnesota and Wisconsin. Among the things they were supposed to do but didn’t: maintain the viability of a retail fuel station in Hibbing, Minnesota and divest fuel stations in ten local markets on time. The substantial penalty is a reminder that the Commission will always require parties to live up to their obligations – consumers in the affected markets deserve no less. 
    
7. The first joint FTC/DOJ guidance on vertical merger analysis. In June, for the first time, the FTC and DOJ issued Vertical Merger Guidelines. The VMGs were the culmination of a public process that started with workshops during the 21st Century Hearings on Competition and Consumer Protection, and included a round of public comments on an initial draft. The VMGs outline many theories of harm that the agencies will consider when assessing the likely impact of a merger with vertical components, including diagonal mergers and mergers of complements. In late December, the Commission released a Commentary on Vertical Merger Enforcement, which provides details from the agency’s many vertical merger cases in an effort to provide a deeper understanding of how the FTC analyzes competition issues that arise in vertical mergers.
    
8. Right-sizing HSR for modern times. In September, the Commission (in consultation with DOJ) launched the most comprehensive review of the rules and interpretations implementing the HSR Act since the premerger notification program was set up in the late 1970’s. The initiative has two parts: a Notice of Proposed Rulemaking that would require filers to aggregate holdings of associates and provide an exemption for the acquisition of 10 percent or less in any issuer with which there is no existing competitive relationship, and an Advanced Notice of Proposed Rulemaking that seeks input on a wide range of issues. In November, Bureau staff held three virtual public events to answer questions from those looking to provide formal feedback. Comments are due February 1, 2021.
    
9. Coordination on competition and consumer protection concerns. The FTC’s unique DNA reflects its dual mission: protecting consumers from unfair and deceptive practices and promoting competition by combating unfair methods of competition. More and more, these missions are closely aligned, especially in markets where access to consumer data drives competition. In September, the Bureau of Competition and the Bureau of Consumer Protection hosted a public workshop to examine the potential benefits and challenges to consumers and competition raised by data portability initiatives. In our enforcement work, BC has followed BCP’s lead by hiring technologists to work alongside lawyers in our Technology Enforcement Division, and BCP’s consumer redress group is working closely with BC staff to return $60 million to patients who overpaid for an opioid-addiction treatment from a fund created by the settlements in the Reckitt and Indivior product-hopping cases. Our closer coordination is evident in recent investigations, and in complaints and potential remedies that reflect a broader perspective on how competition and consumer protection concerns intersect.  
10. Standing up for policies that promote competitive healthcare markets—this year and every year. For decades, the FTC’s competition advocacy program has cautioned against unnecessary or overbroad restrictions that limit competition. The COVID pandemic has demonstrated in real terms the benefit of markets, especially in healthcare, where businesses can quickly adjust to rapid changes. This year – and not for the first time – the FTC supported the expansion of telehealth services; encouraged healthcare policymakers to allow advanced practice registered nurses to practice to the full extent of their training as a way to improve access to healthcare, contain costs, and expand innovation in health care delivery; and opposed the granting of a certificate of public advantage (COPA) in the merger of two Midwest Texas hospitals that is likely to result in substantial consumer harm. In early March, during the agency’s last in-person event for the year, we reaffirmed our partnership with the FDA to support a competitive marketplace for biosimilars. 

In a year of many challenges, the accomplishments this year show that dedicated Bureau and Commission staff continue to bring forward ground-breaking enforcement and policy efforts that advance the law and ensure competitive markets.