Trends and Enforcement Priorities from the 2024 ABA Antitrust Spring Meeting

Last week, a Mayer Brown team joined over 4,000 lawyers from around the globe—including top enforcers from the US Federal Trade Commission (“FTC”), Department of Justice (“DOJ”), and the European Union (“EU”)—to discuss new developments and enforcement priorities in the antitrust space. Overall, both the US and EU are specifically doubling down on merger scrutiny, and are looking to increase their powers in that space. Here are a few key takeaways.

1. Don’t Sell to a Monopolist – Continued Cautions for Proposed Mergers

Over the past year, US regulators at the DOJ and the FTC (together, the “Agencies”) have shown a continued and heightened emphasis on analyzing and reviewing proposed acquisitions where one party has a significant market share or monopoly power.

The 2023 Merger Guidelines indicate that the Agencies will consider the overall competitive impact of multiple acquisitions. The Guidelines state that, when companies engage in a series of acquisitions in the same or related business lines, these acquisitions may be evaluated by antitrust enforcers as an industry trend of consolidation (as discussed in Guideline 7), or as an overall pattern by the acquiring firm (as discussed in Guideline 8).

For example, in September 2023, the FTC sued U.S. Anesthesia Partners Inc. (USAP) and its private equity sponsor after USAP acquired a series of anesthesia practices, most of which had individually-tiny market shares, but which cumulatively resulted in USAP controlling up to a 70% market share in certain geographic markets in Texas.¹

Similarly, in December 2023, the FTC challenged an exclusive license from Maze Therapeutic Inc. to Sanofi for an investigational treatment of Pompe disease.² Sanofi is a monopoly supplier of FDA-approved drugs to treat the disease, and according to the complaint, Maze’s Phase 2-ready developmental drug threatened to undermine this monopoly as the first oral medication available for Pompe disease patients. Following the challenge, Sanofi agreed to terminate its proposed acquisition.

Both cases are instances in which the Agencies have continued to look at and challenge serial acquisitions and nascent competition. And consummated mergers—whether reviewed by the Agencies or approved under the HSR process—are similarly not in the clear. Regulators from both Agencies continue to caution that the absence of a government enforcement challenge does not preclude subsequent legal challenges, which can occur at any time that an acquisition threatens to ripen into a restraint of commerce or monopoly creation.

2. State Attorneys General Aren’t Slowing Down—and Aren’t Afraid to Go it Alone

A panel—representing Attorney General offices in California, Washington State, Maryland, and Utah—emphasized that state enforcers are continuing to expand their capabilities to challenge anticompetitive conduct, particularly in the merger space. Now more than ever, companies need to be aware of state-specific laws, developments, and priorities regarding anticompetitive conduct and plan accordingly when considering actions which may result in antitrust scrutiny.

The panel specifically emphasized the increased attention that states are paying to mergers. For example, California law specifically permits the state to challenge mergers, even if the FTC approves those mergers. This year, Colorado and Washington State challenged the Kroger Albertsons proposed merger before the federal government moved to challenge the same merger. States have also decided to challenge mergers even where the federal government has declined to move forward, whether from political concerns or bureaucratic gridlock.

The state enforcers also continue to focus their scrutiny on activities in the labor space. For example, federal enforcers have been active in challenging “no poach” agreements. But these agreements can also violate state law. The legal treatment can vary state-by-state, and the fact that a policy may trigger scrutiny in one state does not mean it necessarily will be condemned in another.

While the state Attorneys General will continue to partner with the federal government on major litigation matters, as seen in the recent Big Tech cases, the panel made it clear that the states are stepping up state-specific enforcement actions. California—the largest state Attorney General’s office—is adding more positions and hiring economists while the state legislature considers strengthening the state’s Cartwright Act. Even the smaller offices are stepping up their joint work with other state agencies in the healthcare and agricultural spaces to expand their capabilities to focus on conduct in those industries.

3. Increasing Uncertainty Ahead in the EU in Both Merger Control and Antitrust Enforcement

Enforcers from across the EU made clear that they will continue to adopt an expansive and bold approach to their powers. Several senior representatives of European authorities emphasised that this approach was necessary in order to review transactions, behaviours and market features that might be considered harmful to consumers, but might not be expected to be captured by applying the traditional competition tools in their usual way. This obviously triggers a lot of questions, uncertainties and unpredictability for businesses, which they should plan for and use to their advantage.

a. EU Awaits Ruling on “Article 22” Call-In Mechanism

Firstly, on the EU merger control front, enforcers made it clear that they will continue to defend the use of the “Article 22” call-in mechanism. The Commission and European national competition authorities currently use this mechanism to allow the latter to refer to European Commission transactions which do not meet the European and national thresholds. Should this call-in mechanism be invalidated by the European Court of Justice—which is due to rule on this matter in the fall of this year—as an advisor to the Court has recently suggested, enforcers emphatically affirmed that they would not retreat. Rather, they would revert to ex post antitrust tools to review mergers they consider as harmful and thereby close any enforcement gap. Given the vagaries of the ex post enforcement tools, namely the prohibition of abuse of dominant positions, the enforcers warned that such a course of action would increase uncertainty and unpredictability for businesses even more.

In addition, European enforcers also made it clear that deals that are presented as mere cooperation agreements and thereby might be set up as escaping from merger control review because, for example, they do not look like they involve a proper change of control (such as the transfer of key personnel), will be thoroughly explored and investigated. Some officials even indicated that, if needed, amendments to the existing rules might be required to capture these kinds of situations. In other words, where the tool box is found ‘lacking,’ the authorities won’t give up.

With regard to the substantive review of mergers in Europe, recent bold enforcement in cases of vertical and conglomerate mergers was flagged—which saw, for instance, Amazon/iRobot and Booking/eTraveli transactions being aborted. These cases were used as examples to show that businesses, especially in digital markets, should be mindful that enforcers will closely review and account for how ability to access to data is leveraged across markets, and how their transaction impacts innovation, ecosystems, and even ESG-related concerns. As such, the theories of harm raised against merging parties, now more than ever before, clearly go beyond mere price increases or volume and quality decreases. Whilst there is an element of this wide-ranging assessment by European competition authorities reflecting the complexity of the deals and markets in play, businesses are advised to watch out for merger authorities going too far.

b. Increased Scrutiny of Anticompetitive Behavior in the EU

Secondly, on the EU behavioural front, businesses should be aware that EU enforcers have bolstered their own detection tools (e.g., market screening mechanisms), and that the pipeline of antitrust cases has increased. This obviously puts pressure on businesses to assess their compliance. In this context, it was unsurprising that the Commission spoke of an uptick in leniency applications. However, a decision as to whether to go in for leniency or not is finely balanced for businesses and the Commission is cognisant of that. Indeed, it made clear that now up to 50% of its cases are ex officio. Whilst to date, this term has been used to refer to own initiative cases, the Commission now seems open to hearing from companies outside of the formal leniency or complainant programmes about concerns regarding anticompetitive conduct or concerns in a given market, then taking an investigation ex officio from there. These multiple triggers for an investigation offer companies options, but also risk due process and procedural rigour falling between the cracks—which businesses should take care not to fall victim to. It also puts pressure on cartelists, who may feel unsecure and decide to blow the whistle rather than being victim of their own cartel.

With regard to the substance of antitrust enforcement we notice that EU enforcers are trying to expand their reach. A topical example that may spread across the block is the new German Competition Authority's regulatory power which can impose remedies to undertakings, even in the absence of any anticompetitive behaviour, and just on the basis of a mere market malfunctioning finding. Perhaps as something of an antidote to this, one might note the repeated call by the EU Competition Commissioner for firms considering collaboration in the ESG space to come to the Commission for an assessment, which—if given the green light—would protect them from future fines. However, given the difference in approach taken by other authorities, notably in the US, this is a very delicate area in practice which needs careful planning.

The key takeaway from this Spring Meeting, from an EU perspective, is that EU enforcers will continue to increase their powers, by expanding their jurisdictional scope and applying broader theories of harm, to the potential detriment of businesses who rely on certainty and stability.

¹ See FTC v. US Anesthesia Partners, Inc., No. 23-cv3560 (S.D. Tex.).

² Sanofi and Maze Therapeutics, Inc., FTC Dkt. No. D-9422 (Dec. 11, 2023).