The American Bar Association’s Antitrust Law Section recently held its annual Spring Meeting in Washington, DC, featuring updates from federal, state, and international antitrust enforcers and in-depth commentary on leading antitrust issues facing the business community today. This post recaps key takeaways from the first portion of the Spring Meeting.
CIVIL ENFORCEMENT AND MERGER REVIEW: US DEPARTMENT OF JUSTICE (DOJ) PRIORITIES
- Aggressive Enforcement by Any Other Name: DOJ Antitrust Division Deputy Assistant Attorney General Hetal Doshi characterized DOJ’s enforcement posture as “not aggressive enforcement, just enforcement,” but nevertheless opined that the Department’s past practice of erring on the side of under-enforcement has “ill-served” the public.
- Whole-of-Government Means Whole-of-Government: The Division’s Deputy Assistant Attorneys General Maggie Goodlander and Michael Kades highlighted that various federal statutes other than the antitrust laws confer the power to act to preserve competition. They emphasized DOJ’s intent to pursue sweeping enforcement priorities to execute President Biden’s recent executive order calling for a whole-of-government approach to protecting competition, including by working in conjunction with other federal agencies like the Departments of Defense, Transportation, and Agriculture.
- Enforcement Priorities Include Technical Violations of HSR Act, Spoliation, Gun-Jumping: Deputy Assistant Attorney General Goodlander emphasized DOJ’s intent to pursue vigorously violations of the HSR Act, including failures to make required premerger notification filings, failures to provide all Item 4 documents, and “gun-jumping” caused by concerted action prior to the satisfaction of the HSR Act’s waiting period. Goodlander also commented on DOJ’s intent to scrutinize merging parties’ conduct during the due diligence phase to investigate whether parties are using due diligence to conceal and accomplish anticompetitive conduct. Other DOJ officials further emphasized that DOJ and the Federal Trade Commission (FTC) are working to ensure that the agencies’ investigations are not harmed by the use of third-party ephemeral communication platforms and to penalize spoliation of evidence contained in such messaging applications.
- Hostility Toward Freely Granted Divestitures in Merger Investigations: Deputy Assistant Attorneys General Doshi and Andrew Forman conveyed the high bar merging parties face when they offer structural or behavioral remedies, including divestitures, to resolve or head off a DOJ challenge to a merger or acquisition. Doshi and Forman pointed to instances where divestitures and/or carveouts offered in merger transactions have failed and “the American people bear the risk” of anticompetitive harms and asserted that “the idea that a divestiture can cure the feared antitrust issues can’t rest on our hopes of what might happen in the future after the deal and divestiture closes.”
- Consent Decrees Face Much Stricter Scrutiny: Deputy Assistant Attorneys General Forman, Goodlander, and Kades emphasized the “exacting standard” that must be applied when DOJ is considering entering into a consent decree to resolve a merger challenge. According to the Department officials, the antitrust laws prohibit mergers that may substantially lessen competition, which means that for a consent decree to resolve antitrust concerns, it must eliminate the possibility that a merger could cause harm—an “extremely high bar.”
- Updated Merger Guidelines to Focus on Relevant Market Stakeholders, Reflecting a “Careful Evaluation of Market Realities”: DOJ officials signaled that the forthcoming updates to the Horizontal Merger Guidelines will be guided by a focus on certain relevant stakeholders, including the American people, workers, and small businesses, and a commitment to democratizing antitrust enforcement. The forthcoming guidelines may also break new ground on how traditional notions of antitrust harm are applied in a modern economy.
- FTC Division Director Reaffirms Safety Zone for Hospital Mergers: Though DOJ withdrew its endorsement of the 1996 Statements of Antitrust Enforcement Policy in Health Care guidance earlier this year, Mark Seidman, the Assistant Director of the FTC’s Mergers IV Division, reaffirmed that the FTC has not withdrawn that guidance. Specifically, Seidman highlighted that the guidelines’ safety zones for certain hospital mergers were still the policy of the Commission. Nevertheless, Seidman emphasized that anticompetitive concerns can be present even in smaller hospital mergers, and the Commission will continue to scrutinize hospital mergers.
- Cross-Market Theories of Harm Still on the Rise: Current and former FTC officials commented on the potential for healthcare mergers to produce cross-market effects (i.e., anticompetitive effects stemming from mergers between parties that do not compete in the same geographic areas) and signaled it as an area of future scrutiny as regulators review healthcare transactions.
- FTC Still Hostile to Certificates of Public Advantage (COPAs): Seidman characterized COPAs in healthcare transactions as a way of trying to circumvent the antitrust laws, continuing the FTC’s general hostility towards COPA legislation and COPAs in healthcare transactions.
- FTC Defends Proposed Noncompete Rule: Seidman defended the FTC’s January 2023 proposed rule that would ban noncompete clauses in employment agreements on the ground that hospitals, operating like any other business, recruit and train employees, but nevertheless must compete with other healthcare providers to recruit and retain those workers. Opponents say the rule would result in higher costs, as hospitals incur expenses to recruit and train employees who then leave the organization, and, because the proposed rule is being promulgated under Section 5 of the FTC Act, which does not apply to nonprofit organizations, the rule would create a disparate impact between for-profit and nonprofit healthcare organizations. The public comment period for the FTC’s proposed rule is currently open through April 19, 2023.
- DOJ Revival of Section 2 of the Sherman Act: DOJ’s Antitrust Division has reinvigorated its use of Section 2 of the Sherman Act, staying true to officials’ comments made at last year’s ABA Antitrust Spring Meeting to use all tools available in their toolbox to prosecute antitrust violations criminally. Until DOJ brought two Section 2 cases in 2022, Section 2 criminal enforcement was entirely unheard of for nearly five decades.
- More to Come: We expect to see more criminal cases brought under Section 2 given DOJ’s intent to prioritize criminal charges for monopolization offenses involving what Jacklin Lem, the Assistant Chief of the Antitrust Division’s San Francisco office, characterized as plain criminal intent and unambiguously anticompetitive conduct. Jonathan Kanter, Assistant Attorney General for the Division, further stated at this year’s Spring Meeting that DOJ will not hesitate to bring monopolization cases when supported by facts and law.
- Lack of Clarity on Counseling Clients: Because the full application of Section 2 is still unknown and these cases have not been tested or challenged in court, there is much uncertainty around when potential monopolization conduct could lead to criminal exposure. DOJ’s aggressive posture toward its antitrust enforcement mandate and its willingness to proceed in the absence of policy guidance suggests that the business community should prioritize compliance programs and engage early with skilled antitrust counsel to avoid potential exposure up to and including criminal liability.
ROBINSON-PATMAN ACT (RPA)
- RPA Cases Part of FTC Focus on Rural America: FTC Commissioner Alvaro Bedoya harkened to the RPA’s “explicitly protectionist” concern for safeguarding competition among independent retailers and grocers to ensure that rural America had the full benefit of competition on both price and quality of service in the face of competitive pressures from larger market participants.
- Expect Renewed Focus on Price Discrimination Cases, Especially in Rural Retail and Grocery Markets: Commissioner Bedoya offered an expansive view of the FTC’s intent for the RPA enforcement authority. He highlighted Congress’s intent that the RPA would “plug the gaps” that had been exploited to get around the Clayton Act’s price discrimination prohibition and emphasized the agency’s intent to enforce the law more vigorously.
- Resurgence in Private RPA Litigation Less Likely, But Other Antitrust Claims Still Possible: Private plaintiffs are not entitled to the same inference of injury as government regulators when bringing RPA causes of action; thus, private suits under the RPA are rarely successful. Plaintiffs, however, are often creative in framing price discrimination cases to tie in causes of action under other laws, including traditional antitrust conspiracy, monopolization, or unfair competition claims, or to allege anticompetitive effects in other markets entirely (e.g., labor or distribution markets). The business community should expect that a resurgence in federal RPA enforcement will carry attendant risks of more private antitrust litigation under the full body of the antitrust laws.
FTC AND DOJ STATEMENTS CONTINUE TO TARGET PRIVATE EQUITY
- Agencies Maintain Focus on Private Equity, Specifically Healthcare: Consistent with recent statements on private equity, enforcers from the FTC and the Antitrust Division of the DOJ again made statements highlighting their continued targeting of private equity transactions, particularly with regard to healthcare.
- FTC Concern Stems from Private Equity Business Model: Rahul Rao, Deputy Director at the FTC’s Bureau of Competition, stated that the FTC’s concern with private equity stems from many of the firms’ business models. He said, in many cases, private equity deals’ debt financing and the heavy debt loads can undermine a business’s long-term health and its ability to compete because the PE owner focuses on short-term returns through drastic cost-cutting measures. Rao said, “This debt-fueled, strip-and-flip business model can hollow out long-term productive capacity.” He also bemoaned nonreportable “serial acquisitions” by private equity firms in healthcare, asserting that private equity ownership of healthcare businesses is correlated with higher prices, lower wages, and degraded quality of care.
- DOJ Targets Interlocking Directorates in Private Equity: Catherine Reilly, the DOJ Antitrust Division’s counsel for civil operations, highlighted DOJ’s work on interlocking directorates—when the same individual serves simultaneously as an officer or director of two competing companies (direct interlocks) or when different individuals on boards of competing companies act on behalf of and at the direction of a single firm, such as a private equity sponsor (indirect interlocks through deputization). She stated that DOJ has forced 14 director resignations already and there are a dozen probes currently open, many involving private equity firms.
- Private Equity—Allegedly Harmful, Not Helpful: Reilly echoed Rao’s thoughts on deal impacts, noting nonreportable serial acquisitions and short-term flip strategies can be very harmful. She also stated that private equity-owned companies are not likely to act as mavericks—firms that exert a disproportionate competitive effect by constantly seeking to upset the status quo by offering customers pricing, service, quality, and/or innovation that its competitors do not.
- Nothing New—A Continued Focus on Private Equity: In all, the commentary was not new. It makes clear, however, that the FTC and DOJ continue to focus on private equity and freely describe the industry as unhealthy for competition, highlighting this administration’s view that private equity deals merit special focus.