Antitrust Division’s Spring Update 2017: Insights Regarding DOJ’s Enforcement and Policy
The Antitrust Division recently issued its 2017 annual spring update.
The update emphasizes the Division’s recent litigation victories, particularly in the merger context. In his introductory remarks, Assistant Attorney General Brett Snyder noted the Division’s litigation docket is more active—on both the civil and criminal sides—than it has been in recent years.
The Division had several high-profile victories in challenges to health insurance mergers over the past year:
The U.S. District Court for the District of Columbia enjoined Aetna Inc.’s proposed $37 billion merger with Humana Inc. after concluding that it would likely substantially lessen competition in the market for healthcare coverage.
The same court subsequently also blocked Anthem, Inc.’s proposed $54 billion acquisition of Cigna Corp., holding that it would likely substantially lessen competition in the commercial health insurance markets. (On April 28, after the Division’s update was released, the U.S. Court of Appeals for the District of Columbia upheld the ruling blocking the Anthem-Cigna merger.)
Several other trials regarding mergers are scheduled to take place over the next few months. Currently, the Division is on trial in Delaware to challenge EnergySolution’s acquisition of Waste Control Specialists LLC, the two competitors for low-level radioactive waste disposal services. The Division also had a challenge to Deere & Co.’s proposed acquisition of Precision Planting, LLC slated for trial in Illinois in June, but the parties called that deal off earlier this week.
On the criminal front, the Division has continued its success in prosecuting bid-rigging violations. Over the last year, four actions proceeded to trial. Those prosecutions resulted in convictions of nine defendants. In addition, two senior executives in the pharmaceutical industry pleaded guilty to charges of conspiring to fix prices for generic drugs.
The Civil Division also recently conducted an investigation of tour bus companies, resulting in a settlement and the disgorgement of $7.5 million in ill-gotten profits. That investigation also led to criminal penalties: in March 2017, a former vice-president of Coach USA was sentenced to 15 months’ imprisonment for obstruction of justice.
Six additional criminal trials are scheduled for 2017.
International Program Update
The Division has continued international enforcement efforts. Notable developments include:
During 2016, the Division worked closely with other nations’ antitrust enforcers in connection with an ongoing investigation into price fixing and bid rigging in the shipping industry. Those enforcement efforts have yielded charges against eight executives and guilty pleas from four companies.
In March 2017, the Division secured a guilty plea from an Israel-based defense contractor who defrauded the Foreign Military Financing Program, which provides funds to foreign nations to purchase American-made military goods.
The Division reports that, since last year’s update, it has cooperated in twenty merger and civil conduct investigations in fourteen different jurisdictions.
Over the past year, the Division has worked to strengthen its bilateral relationships with its foreign counterparts, including continuing to work closely with Canadian enforcers and holding meetings with Chinese antimonopoly agencies to promote cooperate in enforcement.
Also, in January 2017, the Division and the Federal Trade Commission issued revised Antitrust Guidelines for International Enforcement and Cooperation. These new guidelines update the 1995 International Antitrust Guidelines, and provide insight into the agencies’ international enforcement policy.
The Division released other publications over the past year to provide public guidance on the Division’s enforcement procedures and the requirements of the antitrust laws. In January 2017, the Division and FTC released Antitrust Guidelines for the Licensing of Intellectual Property. These modernize the 1995 IP Licensing Guidelines and provide guidance for the Division’s enforcement and policy in the intersection of intellectual property licensing and antitrust.