A Busy Six Months

As we head into the second half of 2020, it’s a good time to pause and take stock of the past six months of work in the Bureau of Competition.

Despite the challenges created by the COVID-19 pandemic, Bureau staff have not let up in fulfilling our mission to enforce the antitrust laws and promote competition. In fact, the Commission is on pace for one of its busiest years for merger enforcement in twenty years—including several significant matters where we’ve initiated litigation or resolved concerns via consent agreement while teleworking. That the Bureau has continued to work so productively under unprecedented circumstances is a testament to the remarkable dedication and determination of our talented Bureau staff.    

In the past six months, the Commission sued to block five mergers, and another seven were abandoned in the face of antitrust concerns raised in our investigations. The Commission voted out another seven complaints with settlements that include divestitures designed to eliminate the competitive concerns resulting from the proposed merger. And this six-month period does not include the two complaints the Commission voted out the week of December 16, 2019, one of several double-header weeks we’ve had recently. 

This recent increase in activity has added to the Commission’s already active litigation docket.  Today, we have four cases in litigation before federal district courts, three cases before the FTC’s administrative court, and five cases before appellate courts across the country.

Having said all that, it’s important not to overread the numbers. To borrow a metaphor from former FTC Chairman Bill Kovacic, the FTC is like an orchard. The fruit you harvest today comes from trees someone else planted, and if the seeds you plant today sprout, the fruits will be for future caretakers to reap. Long-term investigations, management decisions, resource allocations, and other initiatives fall into that category, so review snapshot stats with care.

Which is why it helps to supplement a look at the numbers with a look at the cases. In the past six months or so, some of our cases commanded a lot of attention for their impact on industry and the law.

• In the health care space, we challenged a nascent competitor acquisition in late 2019 and a potential competitor acquisition a few months later. Together with seven state Attorneys General, we also filed suit in federal court alleging an elaborate anticompetitive scheme to preserve a monopoly for a life-saving drug.
• We challenged the acquisition of an innovative direct-to-consumer razor company that had also started to serve brick-and-mortar customers, posing a heightened competitive threat to a long-standing duopoly.
• We also challenged an aggressive competitor’s minority investment in a dominant player and attendant joint venture, under both Section 7 and Section 1.
• We entered into a settlement that eliminated harmful agreements among competitors and reopens markets to competition in the rent-to-own industry.
• We collected $3.5 million in civil penalties from a company that failed to divest retail fuel stations as required by a Commission order.

But there’s also news among the things that didn’t happen. Two providers of home health services, Aveanna Healthcare and Maxim Healthcare, abandoned their deal after our investigation raised concerns about the merger’s impact on both private duty nurses and their patients. That meant that these nurses and their patients could continue to benefit from competition between the parties. 

We know that the public is watching our work more closely than ever, and we’re excited that antitrust law and competition policy is often in the headlines these days. In spite of numerous challenges, we’re focused on the future, and we’re even more motivated to keep up our work to promote competition and protect American consumers.