FTC Marks One-Year Anniversary of Government-Wide initiative to Promote Competition in the American Economy

The Federal Trade Commission marked the one-year anniversary of a government-wide effort to implement President Biden’s Executive Order on Promoting Competition in the American Economy. Over the past year, the FTC has been working with agencies around the federal government and taking aggressive steps to bolster competition that is hobbled by consolidation, concentration, and other roadblocks, resulting in higher prices, lower wages, declining entrepreneurship, growing inequality, and a less vibrant democracy.

“The President’s Executive Order on Promoting Competition in the American Economy recognizes the whole-of-government approach needed to urgently tackle unhealthy concentration and unfair methods of competition across the economy," said FTC Chair Lina M. Khan. "I look forward to continuing to build on and expand the FTC’s collaboration with government partners to ensure that all Americans benefit from fair, open, and competitive markets and the widespread prosperity, innovation, and freedom that they promote.”

In the past year, the FTC has worked to ensure that it is enforcing the law to the fullest extent. This has included reviewing key guidance, along with the Department of Justice’s Antitrust Division, to re-examine the agencies’ Merger Guidelines in order to reinvigorate enforcement against anticompetitive mergers.

Other key enforcement steps the FTC has taken include:

• Protecting workers and small businesses by cracking down on noncompete provisions and other practices that restrict worker mobility through our merger enforcement orders in 7-Eleven ’s acquisition of Marathon’s Speedway subsidiary, DaVita Inc.’s proposed acquisition of University of Utah Health dialysis clinics, and ARKO Corp.’s acquisition of Express Stop retail fuel outlets from Corrigan Oil Company.
• Safeguarding consumers’ right to repair their products, first by issuing a policy statement pledging to ramp up investigations on repair restrictions imposed by manufacturers, and more recently by announcing complaints and orders against Harley-Davidson, the maker of Westinghouse outdoor generators and outdoor grill manufacturer Weber-Stephen Products, LLC over alleged right-to-repair violations.

• Cracking down on private equity roll-ups with strong prior approval and prior notice provisions for future acquisitions, which allow the FTC to keep a close watch on markets at issue moving forward. The agency required these provisions in cases involving JAB Consumer Partners’ acquisition of veterinary clinic operator SAGE Veterinary Partners, LLC and JAB’s acquisition of Ethos, another veterinary clinic owner.

• Restoring a critical FTC tool for detecting and preventing facially anticompetitive deals, and conserving the agency’s resources reinstituting the agency’s long-established practice of routinely restricting future acquisitions for firms that pursue anticompetitive mergers.

• Ramping up the FTC’s challenges to illegal anticompetitive mergers in a range of sectors, including in the defense, computer chip, outdoor sporting goods, energy pipeline, and health care industries. From June 2021 to June 2022 the FTC took 26 enforcement actions, and 2 additional abandonments for deals facing likely challenges. This included stopping four anticompetitive hospital mergers, and litigating (at one point) three vertical merger challenges at the same time, something that is unprecedented in modern antitrust history.

• Obtaining a lifetime ban of Martin Shkreli from the pharmaceutical industry (the first such ban in a civil antitrust case in recent history) and recouping millions of dollars for victims of the ‘Pharma Bro’ scheme to illegally monopolize the life-saving drug Daraprim.

• Launching initiatives to examine competition and antitrust enforcement in the pharmaceutical industry and U.S. labor markets, as well as inquiries into the prescription drug middleman industry, the infant formula crisis, and disruptions in the U.S. supply chain;