FTC Testifies before Subcommittee of Senate Committee on the Judiciary Regarding Oversight of Antitrust Enforcement

In testimony before the U.S. Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights, the Federal Trade Commission described its enforcement of antitrust laws, its advocacy work, and the public hearings it is hosting on a variety of competition and consumer protection issues.

Testifying on behalf of the FTC, Chairman Joseph J. Simons outlined a series of notable victories in stopping anticompetitive mergers and conduct.

Since the beginning of FY 2016, the FTC has challenged 55 mergers. Last year alone, according to the testimony, the Commission voted to initiate litigation blocking five mergers. In two of those cases, the parties abandoned the merger after the Commission commenced litigation. In a third, a federal court judge has temporarily blocked the merger pending a full trial. Three other cases remain in litigation.

Most of the FTC’s merger enforcement cases are resolved through negotiated settlements that require divestitures and span a wide variety of industries, the testimony states. With respect to horizontal mergers, in the last year, the agency reviewed transactions involving retail gas stations and convenience stores, as well as those involving products such as cement, agricultural chemicals, medical instruments, and pharmaceuticals, and services such as specialty veterinary services and air ambulance services.

The Commission has reviewed the vertical merger of Northrup Grumman, a leading provider of missile systems to the Department of Defense, and Orbital ATK, a key supplier of solid rocket motors. The FTC worked closely with the Department of Defense, and the resulting proposed FTC order imposes non-discrimination requirements and a firewall to preserve competition, according to the testimony.

As part of the agency’s commitment to efficient merger review, the Bureau of Competition is developing a more robust system of tracking key developments in the merger review process to determine whether reviews are taking longer. Armed with better information, the Bureau will assess what can be done to make the merger review process more efficient and less burdensome while still getting to the right outcome for consumers, the testimony states.

For more than 20 years, the FTC has challenged anticompetitive reverse payment agreements in which a brand-name drug firm pays a potential generic rival to give up challenging the branded company’s patent and to refrain from launching a lower-cost generic product. The FTC obtained a landmark $1.2 billion settlement from the maker of sleep disorder drug Provigil. Other manufacturers have agreed to abandon their reverse payment practices. The FTC is currently litigating three other matters involving reverse payment agreements.

The agency has challenged anticompetitive conduct by drug manufacturers that seek to maintain a monopoly through sham litigation or repetitive regulatory filings that slow the approval of new drugs. The Commission recently had a major victory when a federal court ruled that AbbVie Inc. used sham litigation to illegally maintain its monopoly over the testosterone replacement drug Androgel. The court ordered $493.7 million in monetary relief to those who were overcharged, the testimony states.

The Commission is attentive to health care firms engaging in collusive practices that restrain competition for employees. As the testimony explains, in July, the agency charged three parties—a Texas company that provides therapists to home health agencies, its owner, and the former owner of a competing staffing company—with violating the antitrust laws by agreeing to reduce rates paid to therapists, and by inviting other competitors to join their collusive scheme.

The widespread use of technology and data often offer consumer benefits, but may also raise new competition issues, according to the testimony. When appropriate, the Commission will take action to counter the harmful effects of coordinated or unilateral conduct by technology firms.

As part of the agency’s commitment to stay current with emerging trends in the dynamic U.S. economy, Chairman Simons announced in June a series of public hearings to consider whether broad-based changes in the economy, evolving business practices, new technologies, and international developments warrant adjustments to competition and consumer protection law, enforcement priorities, and policy. As the testimony notes, the series, titled Hearings on Competition and Consumer Protection in the 21st Century, began last month with sessions at Georgetown Law Center and the FTC’s Constitution Center auditorium. The sessions considered the consumer welfare standard, market competitiveness and enforcement policy, and vertical merger analysis.

As the testimony states, with expanding global trade and with companies increasingly operating across national borders, the FTC and Department of Justice often engage with foreign antitrust agencies to ensure close collaboration on cross-border cases and convergence toward sound competition policies and procedures. This year, the agency and the DOJ held high-level bilateral meetings with counterparts from antitrust agencies in China, and last year they updated the Antitrust Guidelines for International Enforcement and Cooperation.

The Commission vote approving the testimony and its inclusion in the formal record was 5-0.

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