Antitrust Enforcers Win Big Ahead of the Holidays

December 18, 2023 Press Release

Washington, D.C. — As 2023 comes to a close, antitrust enforcers at the Federal Trade Commission and Department of Justice Antitrust Division are notching huge wins in the final months of the year across tech, healthcare, and more. To recap this historic run in antitrust enforcement just in the past seven days, the American Economic Liberties Project released the following statement.

“Antitrust enforcers are closing out 2023 with a bang,” said Jimmy Wyderko, Spokesperson for the American Economic Liberties Project. “Adobe is abandoning its takeover of Figma amid DOJ scrutiny, Illumina is divesting Grail after an appeals court sided with the FTC, and drugmakers are de-listing bogus Orange Book device patents challenged by the FTC, all against the backdrop of final, modernized Merger Guidelines from the agencies. Meanwhile, a jury of everyday Americans just handed Google its first antitrust loss in a suit brought by app developer Epic, and the Department of Transportation has announced a record-breaking enforcement action against Southwest Airlines. These are huge victories for enforcers, and for the working families that would have felt the brunt of these mergers across healthcare and tech.”

“It’s clear that the wind is at the back of the antimonopoly movement heading into the New Year with Wall Street analysts predicting a Google loss in the search antitrust trial and positive signals for the DOJ from the judge in JetBlue-Spirit,” added Wyderko. “We also hope to see other regulators and enforcers across the Biden Administration build on this momentum in 2024 as they fight to deliver economic justice for everyone.”

Here’s a rundown of these big wins:

Monday, December 11: A California jury ruled in favor of Epic Games, maker of Fortnite, in its lawsuit challenging Google’s monopoly over app distribution—a major victory in the fight against one of Google’s most harmful monopolies, which allowed the company to impose supra-competitive fees of up to 30% on app developers. The ruling marked Google’s first loss in an antitrust lawsuit.

The same day, healthcare giants Cigna and Humana abandoned their plans to merge, likely due at least in part to antitrust scrutiny. Cigna’s acquisition of Humana would have created another closed loop of insurance company, PBM, and major provider, allowing the behemoth to overcharge patients and other payers, diminish the quality of care, and drive independent providers out of business without facing any pressure. Its abandonment is a win for all of healthcare.

Tuesday, December 12: The FTC issued a final rule to stop dealerships’ use of junk fees and bait-and-switch tactics in auto sales. The rule protects vulnerable consumers—like veterans and low income households—from exploitative tactics commonly used to trick them into paying more after they’ve already sunk time and energy into a purchase.

Wednesday, December 13: Pharma giant Sanofi called off its acquisition of a new drug that threatens its monopoly on treatments for Pompe disease, following an FTC lawsuit. This monopoly, which allows Sanofi to charge patients over $750,000 per year, is now poised to be disrupted.

Friday, December 15: The 5th Circuit Court of Appeals ruled in favor of the FTC’s argument that Illumina’s acquisition of Grail would foreclose key input and substantially lessen competition in the market for multi-cancer early detection (MCED) tests. The decision marks the first time a federal court has ruled that a purely vertical merger violates Section 7 of the Clayton Act in several decades. Shortly after the 5th Circuit opinion, Illumina announced it would divest Grail—a decision that New York Times called a Big Win” for the FTC, for medical innovation, and for patients.

Also on Friday, two drugmakers de-listed bogus patents from the FDA Orange Book, following FTC enforcement actions to rein in patents on devices—rather than actual drug ingedients—that drive up prices for many treatments. In this case, the now-delisted patents served to block lower-price Epipen and asthma inhaler competitors from entering the market.

Monday, December 18: Just today, Adobe abandoned its proposed $20 billion takeover of design collaboration platform Figma, a mere two days after the company met with enforcers at the DOJ Antitrust Division. The deal would have stifled a promising and beloved competitor in the design space, making the abandonment a huge win for creatives.

Also today, the DOJ and FTC released the finalized updated Merger Guidelines, which incorporate decades of new learnings and thousands of public comments from working families and small businesses to bring first principles of the antitrust laws into the 21st Century.

And in the world of aviation, the Department of Transportation issued a record-breaking enforcement action against Southwest Airlines following its 2022 holiday season meltdown. The DOT’s order for more than $600 million in restitution and a $140 million fine (including a $90 million compensation fund) sends a strong message to other airlines that the misbehavior of the past will no longer be tolerated.

Finally, the FTC notched another win in healthcare as John Muir Health abandoned its proposed $142.5 million acquisition of San Ramon Regional Medical Center amid antitrust scrutiny.

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The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.