Pausing (for a brief moment) to take stock

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Once a year, the ABA Antitrust Section Spring Meeting presents the perfect occasion to take stock of the Bureau’s work. This has been an especially busy year for the Bureau of Competition, requiring extraordinary effort from our attorneys and support staff to keep up with the unprecedented litigation workload. As of today, we have multiple merger challenges in various stages of active litigation, as well as three federal court cases involving reverse patent settlements or sham litigation. The merger challenges came quick on the heels of last year’s preliminary injunction trials in Sysco/US Foods and Steris/Synergy, and the eve-of-trial resolution of FTC v. Cephalon, a landmark settlement of $1.2 billion in disgorged profits, our first monetary settlement in a pay-for-delay case. It has been busy.

Presenting my third report as Director allows me to acknowledge not only our litigation efforts, but all the ways in which the Bureau has worked over the last year to prevent harm from anticompetitive conduct or mergers: through negotiated settlements, HSR enforcement, amicus briefs, and industry guidance, as well as behind-the-scenes projects that are designed to improve our process.

On the merger front, merger activity is up, which means that merger review continues to require significant Bureau resources. This year, we applied merger analysis to a wide array of products, services and market conditions. We’ve examined competition among branded and generic pharmaceutical products, as well as products made of cement. We’ve reviewed mergers in which companies compete on a worldwide basis, and those in which rivals compete locally—in areas as small as a half-mile radius from their store. We’ve helped develop quantitative evidence through economic modeling, but have also been reminded by a federal court that qualitative indicia can be just as powerful in predicting a merger’s potential for harm. While the year has been unusual for the amount of merger litigation, day-in and day-out merger review remains a mainstay of our work.

There have also been significant developments in our nonmerger work. Last year, during the week of the Spring Meeting, the Eleventh Circuit issued its decision upholding the Commission’s monopolization decision in McWane, Inc. v. FTC, and last month, the Supreme Court denied review. In the realm of reverse payment settlements, federal courts continue to apply the Supreme Court’s teachings in FTC v. Actavis, not only in Commission cases but also in private litigation, where our active amicus program seeks to help federal courts develop antitrust law in this important area.

There has been a lot of work this year, but it is important work. And the Bureau staff does it with the utmost integrity and dedication to serving the public interest. The beneficial impact of our actions are felt throughout the economy and we take seriously our mission to promote vigorous competition. 

And now it’s time to get back to work.

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