Dale Collins
Georgetown University Law Center
NB: "±" indicates that the hyperlink will take you to another site.
Reading and class notes
Significant precedents
Elimination of potential competition
Vertical foreclosure
Vertical information conduits
Conglomerate theories
Director and management interlocks
Reference materials
Case studies
Primary Materials
Supplemental Materials
Reading and Class Notes
Reading and class notes
2020 DOJ/FTC Vertical Merger Guidelines
U.S. Dep't of Justice & Fed. Trade Comm'n, Vertical Merger Guidelines (June 30, 2020)
Dissenting Statement of Commissioner Rohit Chopra (June 30, 2020)
Dissenting Statement of Commissioner Rebecca Kelly Slaughter (June 30, 2020)
Fed. Trade Comm'n, Commentary on Vertical Merger Enforcement (Dec. 2020)
2021 FTC withdrawal
News Release, Fed. Trade Comm'n, Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary (Sept. 15, 2021)
Statement of Chair Lina M. Khan, Commissioner Rohit Chopra, and Commissioner Rebecca Kelly Slaughter on the Withdrawal of the Vertical Merger Guidelines (Sept. 15, 2021)
Prepared Remarks of Commissioner Rohit Chopra (Sept. 15, 2021)
Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson (Sept. 15, 2021)
Oral Remarks of Commissioner Christine S. Wilson (Sept. 15, 2021)
2021 DOJ response
News Release, U.S. Dep't of Justice, Justice Department Issues Statement on the Vertical Merger Guidelines (Sept. 15, 2021)
NB: The statement does not withdraw the DOJ from the 2020 Vertical Merger Guidelines
Significant Precedents
United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586 (1957) (± Oyez)
Discussed in Unit 9
United States v. El Paso Natural Gas Co., 376 U.S. 651 (1964) (± Oyez)
Federal Power Commission
In re Northwest Natural Gas Co., 13 F.P.C. 221 (June 18, 1954) (authorizing Pacific Northwest Pipeline Corporation to construct and operate a natural gas pipeline from the San Juan Basin to Washington and Oregon)
In re Pacific Northwest Pipeline Corp., 22 F.P.C. 1091 (Dec. 23, 1959) (authorizing El Paso Natural Gas Company to acquire and operate the facilities of Pacific Northwest Pipeline Corporation by a merger of the two corporations), aff'd, California v. FPC, 296 F.2d 348 (D.C. Cir. 1961), rev'd, 369 U.S. 482 (1962) (± Oyez)
In re Pacific Northwest Pipeline Corp., 28 F.P.C. 7 (July 2, 1962) (No. G-13018) (issuing El Paso a temporary certificate to operate the facilities of its Pacific Northwest Division pending the final resolution of the Department of Justice's antitrust challenge)
District court
Complaint, United States v. El Paso Natural Gas Co., No. 143-57 (D. Utah filed July 22, 1957) (Blue Book No. 1354)
United States v. El Paso Natural Gas Co., No. 143-57 (D. Utah Nov. 20, 1962) (finding no violation of Section 7) (reported at 1962 Trade Cas. (CCH) ¶ 70,571)
Supreme Court
rev'd, United States v. El Paso Natural Gas Co., 376 U.S. 651 (1964)
On remand
United States v. El Paso Natural Gas Co., No. 143-57 (D. Utah June 24, 1965) (reported at 1965 Trade Cas. (CCH) ¶ 71,453)
Supreme Court
rev'd sub nom. Cascade Natural Gas Co. v. El Paso Natural Gas Co., 386 US 129 (Feb. 27, 1967) (± Oyez)
On remand
United States v. El Paso Natural Gas Co., No. 143-57 (D. Utah Aug. 29, 1968) (as amended) (reported at 291 F. Supp. 3)
Supreme Court
vacated sub nom. Utah Public Serv. Comm'n v. El Paso Natural Gas Co., 395 U.S. 464 (June 16, 1969)
On remand
United States v. El Paso Natural Gas Co., 1972 Trade Cas. (CCH) ¶ 73,975 (D. Colo. June 25, 1971) (as amended July 26, 1971)
United States v. El Paso Natural Gas Co., 358 F. Supp. 820 (D. Colo. June 16, 1972) (updated Aug. 30, 1972)
United States v. El Paso Natural Gas Co., 1972 Trade Cas. (CCH) ¶ 74,135 (D. Colo. Aug. 2, 1972)
United States v. El Paso Natural Gas Co., 1972 Trade Cas. (CCH) ¶ 74,148 (D. Colo. Aug. 30, 1972)
Supreme Court
aff'd mem., El Paso Natural Gas Co. v. United States, 410 U.S. 962 (1973)
District court
United States v. El Paso Natural Gas Co., Civ. A. No. C-2626, 1975 WL 1026 (D. Colo. Jan. 3, 1975) (modifying decree)
United States v. Penn-Olin Chemical Co., 378 U.S. 158 (1964) (± Oyez)
District court
Complaint, United States. v. Penn-Olin Chemical Co., Civ. No. 2282 (D. Del. filed Jan. 6, 1961) (Blue Book No. 1583) (as in the case file)
Docket sheet (as copied by NARA)
Opinion, United States. v. Penn-Olin Chemical Co., Civ. No. 2282 (D. Del. May 1, 1963) (reported at 217 F. Supp. 110)
Judgment (May 15, 1963)
Supreme Court
vacated, United States v. Penn-Olin Chemical Co., 378 U.S. 158 (1964)
On remand
Opinion following Remand, United States v. Penn-Olin Chemical Co., Civ. No. 2282 (D. Del. Oct 12, 1965) (reported at 246 F. Supp. 917)
Supreme Court
Brief for the Untied States (Oct. 9, 1967)
Brief for Appellees (Nov. 17, 1967)
Reply Brief by the United States (Dec. 5, 1967)
aff'd by an equally divided Court, United States v. Penn-Olin Co., 389 U.S. 308 (Dec. 11, 1967)
FTC v. Procter & Gamble Co., 386 U.S. 568 (1967) (± Oyez)
FTC
Complaint, In re Procter & Gamble Co., 63 F.T.C. 1465 (filed Sept. 30, 1957) (No. 6901)
Opinion and order (June 15, 1961) (remanding cause to hearing examiner)
Second Initial Decision, In re Procter & Gamble Co., 63 F.T.C. 1465, 1477 (Feb. 28, 1962)
Opinion, In re Procter & Gamble Co., 63 F.T.C. 1465, 1534 ( Nov. 26, 1963) (No. 6901)
Sixth Circuit
Procter & Gamble Co. v. FTC, 358 F.2d 74 (6th Cir. Mar. 18, 1966) (No. 15769)
Supreme Court
Brief for the Federal Trade Commission (Dec. 1, 1966)
Brief for the Respondent (Jan. 10, 1967)
Reply Brief for the Federal Trade Commission (Feb. 1, 1967)
rev'd and remanded, FTC v. Procter & Gamble Co., 386 U.S. 568 (1967)
Ford Motor Co. v. United States, 405 U.S. 562 (1972) (Autolite) (± Oyez)
District Court
Complaint, United States v. Ford Motor Co., Civ. No. 21911 (E.D. Mich. filed Nov. 27, 1961) (Blue Book No. 1634)
United States v. Ford Motor Co., 286 F. Supp. 407 (E.D. Mich. June 7, 1968)
supplemented, United States v. Ford Motor Co., 315 F. Supp. 372 (E.D. Mich. July 7, 1970)
Final Judgment (Dec. 18, 1970)
Supreme Court
aff'd, Ford Motor Co. v. United States, 405 U.S. 562 (Mar. 29, 1972) (Autolite)
District Court
Modification of final Judgment (Jan. __, 1974)
United States v. Falstaff Brewing Corp., 410 U.S. 526 (1973)
District court
Complaint, United States v. Falstaff Brewing Corp., Civ. No. 3523 (D.R.I. filed July 13, 1965) (Blue Book No. 1859)
United States v. Falstaff Brewing Corp., 332 F. Supp. 970 (D.R.I. Feb. 28, 1971) (finding that the transaction did not violate the Clayton Act)
Supreme Court
Brief for the United States (June 8, 1972)
Brief for Falstaff Brewing Corporation (July 10, 1972)
Reply Brief for the United States (Oct. 1, 1972)
rev'd, United States v. Falstaff Brewing Corp., 410 U.S. 526 (1973)
On remand
United States v. Falstaff Brewing Corp., 383 F. Supp. 1020 (D.R.I. Oct 23, 1974) (Civ. No. 3523)
United States v. Marine Bancorporation, Inc., 418 U.S. 602 (1974) (± Oyez)
Comptroller of the Currency
Annual Report 1971 (summary of the decision approving the merger begins on page 138)
District court
Complaint, United States v. Marine Bancorporation, Civ. A. No. 237-71C2 (W.D. Wash. filed Oct. 22, 1971) (Blue Book No. 2195)
United States v. Marine Bancorporation, Civ. A. No. 237-71C2 , 1973-1 Trade Cas. (CCH) ¶ 74,496 (W.D. Wash. Jan. 31, 1973) (finding that the transaction did not violate the Clayton Act)
Supreme Court
Brief for the United States (Dec. 29, 1973)
Answering Brief of Appellees (Feb. 27, 1974)
Brief for the Comptroller of the Currency (Apr. 8, 1974)
Reply Brief for the United States (Apr. 19, 1974)
aff'd, United States v. Marine Bancorporation, Inc., 418 U.S. 602 (1974)
Elimination of Potential Competition
Nielsen/Arbitron
Seminal cases
United States v. Marine Bancorporation, Inc., 418 U.S. 602 (1974) (± Oyez)
United States v. Penn-Olin Chemical Co., 378 U.S. 158 (1964) (± Oyez)
Nielsen/Arbitron
(FTC 2013)
—Acquisition
± Nielsen N.V., Press Release, Nielsen to Acquire Arbitron (Dec. 18, 2012)
± Investor Presentation (Dec. 18, 2012)
± Execution Version Agreement and Plan of Merger among Nielsen Holdings N.V., TNC Sub I Corporation and Arbitron Inc. (dated as of Dec. 17, 2012)
—Complaint
Complaint, In re Nielsen Holdings N.V., No. C-4439 (FTC accepted for public comment Sept. 20, 2013) (± FTC news release)
—Consent settlement
Decision and Order (Sept. 20, 2013) (Redacted Public Version)
Statement of the Commission (Sept. 20, 2013)
Dissenting Statement of Commissioner Wright (Sept. 20, 2013)
Agreement Containing Consent Order (Sept. 20, 2013)
Monitor Agreement (Sept. 20, 2013) (Redacted Public Version)
Analysis of Agreement Containing Consent Order To Aid Public Comment (Sept. 20, 2013)
Federal Register notice (Sept. 27, 2013)
Application for Approval of Divestiture of Linkmeter Assets and Related Agreements (Jan. 17, 2014) (FTC news release—issued Jan. 24, 2014)
Complaint, In re Nielsen Holdings N.V., No. C-4439 (FTC issued Feb. 24, 2014) (FTC news release)
Decision and Order (Feb. 24, 2014)
Letter to Commenter Yinger (Feb. 24, 2014)
Significant lower court precedents
± Tenneco, Inc. v. FTC, 689 F.2d 346 (2d Cir. 1982)
± United States v. Siemens Corp., 621 F.2d 499 (2d Cir. 1980)
± BOC Int’l, Ltd. v. FTC, 557 F.2d 24 (2d Cir. 1977)
± FTC v. Atl. Richfield Co., 549 F.2d 289 (4th Cir. 1977)
In re Brunswick Corp., 94 F.T.C. 1174 (1979), aff'd in part & mod. in part sub nom. Yamaha Corp. v. FTC, 657 F.2d 971 (8th Cir. 1981).
Enforcement policy
± J. Thomas Rosch & Darren S. Tucker, Emerging Theories of Competitive Harm in Merger Enforcement, Antitrust Source, Oct. 2011.
± M . Sean Royall & Adam DiVencenzo, Evaluating Mergers Between Potential Competitors Under the New Horizontal Merger Guidelines, Antitrust, Fall 2010.
Economics
± Gregory J. Werden & Kristen C. Limarzi, Forward-Looking Merger Analysis and the Superfluous Potential Competition Doctrine, 77 Antitrust L.J. 109 (2010).
± John Kwoka & Evgenia Shumilkina, The Price Effect of Eliminating Potential Competition: Evidence from an Airline Merger (____), final version at 58 J. Indus. Econ. 767 (2010).
John Kwoka, Eliminating Potential Competition, in 2 Issues in Competition Law and Policy 1437 (ABA Section of Antitrust Law 2008).
± Mats A. Bergman, Potential Competition: Theory, Empirical Evidence and Legal Practice (Sept. 9, 2003).
Vertical Foreclosure/Raising Rivals' Costs
Comcast/NBC Universal
Seminal cases
United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586 (1957) (± Oyez)
Brown Shoe Co. v. United States, 370 U.S. 294 (1962) (± Oyez)
Ford Motor Co. v. United States, 405 U.S. 562 (1972) (Autolite) (± Oyez)
—Acquisition
Comcast Corp. & GE, Press Release, Comcast and GE to Create Leading Entertainment Company (Dec. 3, 2009).
Master Agreement Dated as of December 3, 2009 Among General Electric Company, NBC Universal, Inc., Comcast Corporation and Navy, LLC (Dec. 3, 2009)
General Electric Investor Update: NBCU (Dec. 3, 2009)
—Complaint
Complaint, United States v. Comcast Corp., No. 1:11-cv-00106 (D.D.C. Jan. 18, 2011)
U.S. Dep't of Justice, Antitrust Div., News Release, Justice Department Allows Comcast-NBCU Joint Venture To Proceed with Conditions (Jan. 18, 2011)
Docket sheet (downloaded Mar. 7, 2014)
—Consent settlement
Stipulation and [Proposed] Order (Jan. 18, 2011)
Exhibit A: [Proposed] Final Judgment
Exhibit B: Plaintiff United States' Explanation of Consent Decree Procedures
Competitive Impact Statement (Jan. 18, 2011)
U.S. Dep't of Justice, Press Release, Justice Department Allows Comcast-NBCU Joint Venture to Proceed with Conditions (Jan. 18, 2011)
Notice of Filing of Determinative Document (Jan. 26, 2011)
Stipulation and Order (signed Feb. 22, 2011)
Plaintiff United States's Response to Public Comments (June 6, 2011)
Public comments
Appendix A (June 6, 2011)
Appendix B (June 6, 2011)
Appendix C (June 6, 2011)
Appendix D (June 6, 2011)
Appendix E (June 6, 2011)
Appendix F (June 6, 2011)
Appendix G (June 6, 2011)
Appendix H (June 6, 2011)
Memorandum Order (Sept. 1, 2011)
Final Judgment (Sept. 1, 2011)
United States' Motion and Supporting Memorandum to Enter Final Judgment (June 29, 2011)
Certificate of Compliance with Provisions of the Antitrust Procedures and Penalties Act (June 29, 2011)
Supplemental Statement of The United States in Support of Entry of the Final Judgment (Aug. 5, 2011)
First Annual Report (Sept. 4, 2012)
Modified Final Judgment (Aug. 21, 2013)
Second Annual Report (Sept. 3, 2013)
—FCC proceedings
± Memorandum Opinion and Order, In re Comcast Corp., MB Docket No. 10-56 (FCC Jan. 18, 2011)
± Fed. Commc'ns Comm'n, Press Release, FCC Grants Approval of Comcast-NBCU Transaction (Jan. 18, 2011)
± Statement of Commissioner Mignon L. Clyburn
± Joint Concurring Statement of Commissioners Robert M. McDowell and Meredith Attwell Baker
± Dissenting Statement of Commissioner Michael J. Copps
The Comcast/NBC Universal Merger: What Does the Future Hold for Competition and Consumers?: Hearing Before the Subcomm. on Antitrust, Competition Policy and Consumer Rights of the Sen. Comm. on the Judiciary, 11th Cong. (Feb. 4, 2010) (S. Hrg. 111–976).
Mark Israel & Michael L. Katz, Application of the Commission Staff Model of Vertical Foreclosure to the Proposed Comcast-NBCU Transaction, Report Submitted to the Federal Communications Commission on Behalf of Comcast, General Electric, and NBC Universal (Feb. 26, 2010)
Applicants' Economic Reports (May 4, 2010)
Gregory L. Rosston, An Economic Analysis of the Competitive Benefits from the Comcast NCBU Transaction
Mark Israel & Michael L. Katz, The Comcast/NBCU Transaction and Online Video Distribution (May 4, 2010)
Applicants' Opposition to Petitions to Deny and Response to Comments (June 21, 2010)
Gregory L. Rosston & Michael D. Topper, The Proposed Comcast-NBCU Transaction: Response to Comments and Petitions Regarding Competitive Benefits and Advertising Competition (July 21, 2010)
Mark Israel & Michael L. Katz, Economic Analysis of the Proposed Comcast-NBCU-GE Transaction (July 20, 2010)
American Cable Association, Comments (June 21, 2010)
Exhibit A: William P. Rogerson, Economic Analysis of the Competitive Harms of the Proposed Comcast-NBCU Transaction (June 21, 2010) (Rogerson I)
Exhibit B: Declaration of Steve Friedman
Exhibit C: Declaration of Robert Gessner
Mark Israel & Michael L. Katz, Responses to Commission Econometrics Questions (Oct. 25, 2010)
Mark Israel & Michael L. Katz, Response to Professor Rogerson's Comments on Double Marginalization (Oct. 25, 2010)
American Cable Association, Reply (Aug. 19, 2010)
Exhibit A: William P. Rogerson, A Further Economic Analysis of the
Proposed Comcast-NBCU Transaction (Aug. 19, 2010) (Rogerson II)
Exhibit B: Declaration of Robert Gessner
Exhibit C: ACA’s Proposed Comcast-NBCU License Transfer Conditions
William P. Rogerson, An Estimate of the Consumer Harm that Will Result from the Comcast-NBCU Transaction, Report Submitted to the Federal Communications Communication on behalf of the American Cable Association (Nov. 8, 2010) (Rogerson III)
Commentary:
± Susan Crawford Blog, FCC Conditions on Comcast/NBCU
± Jonathan B. Baker, Comcast/NBCU: The FCC Provides a Roadmap for Vertical Merger Analysis (Feb. 5, 2011)
Ticketmaster/Live Nation
Complaint, United States v. Ticketmaster Entertainment, Inc., No. 1:10-cv-00139 (D.D.C. filed Jan. 25, 2010)
For additional materials, see Case Studies.
Amended Complaint (Jan. 28, 2010) (joining New Jersey and Washington have joined as plaintiffs)
Significant lower court precedents
± Fruehauf Corp. v. FTC, 603 F.2d 345 (2d Cir. 1979)
± Alberta Gas Chems. v. E.I. du Pont de Nemours & Co., 826 F.2d 1235 (3d Cir. 1987)
Economics
± Jonathan B. Baker, Nancy L. Rose, Steven C. Salop & F.M. Scott Morton, Five Principles for Vertical Merger Enforcement Policy (Georgetown Law Faculty Publications and Other Works, No. 2148, 2019).
Steven C. Salop, Invigorating Vertical Merger Enforcement, 127 Yale LJ 1962 (2017).
Steven C. Salop & Daniel P. Culley, Revising the US Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 J. Antitrust Enforcement 1 (2015).
± Steven C. Salop & Daniel P. Culley, Potential Competitive Effects of Vertical Mergers: A How-To Guide for Practitioners (Nov. 10, 2014).
± Simon Loertscher & Markus Reisinger, Market Structure and the Competitive Effects of Vertical Integration (Jan. 30, 2014).
± Serge Moresi & Steven C. Salop, vGUPPI: Scoring Unilateral Pricing Incentives in Vertical Mergers (Georgetown Business, Economics and Regulatory Law Research Paper No. 12-022, June 18, 2012).
± Timothy Bresnahan & Jonathan Levin, Vertical Integration and Market Structure (Jan. 30, 2012).
± Christine Siegwarth, Meyer & Yijia (Isabelle) Wang, Determining the Competitive Effects of Vertical Integration in Mergers (2011).
± Marie-Laure Allain, Claire Chambolle & Patrick Rey, Vertical Integration, Innovation and Foreclosure (Sept. 14, 2010).
Jeffrey Church, Vertical Mergers, in 2 Issues in Competition Law and Policy 1455 (ABA Section of Antitrust Law 2008).
± Michael H. Riordan, Competitive Effects of Vertical Integration (2005), final version published in Handbook of Antitrust Economics 353 (Paolo Buccirossi ed. 2008).
± David T. Scheffman & Richard S. Higgins, Vertical Mergers: Theory and Policy, 12 Geo. Mason L. Rev. 967 (2004).
± Yongmin Chen, On Vertical Mergers and their Competitive Effects, 32 RAND J. Econ. 667 (2001).
Michael A. Salinger, Vertical Mergers and Market Foreclosure, 103 Q.J. Econ. 345 (1998).
Michael H. Riordan & Steven C. Salop, Evaluating Vertical Mergers, 63 Antitrust L.J. 513 (1995).
± Patrick Boulton & Michael D. Whinston, The "Foreclosure" Effect of Vertical Mergers, 147 J. Institutional & Theoretical Econ. 207 (1991).
± Oliver Hart & Jean Tirole, Vertical Integration and Market Foreclosure, Brookings Papers on Economic Activity, Microeconomics (1990).
Janusz Ordover, Steven Salop & Garth Saloner, Equilibrium Vertical Foreclosure, 80 Am. Econ. Rev. 127 (1990).
± Oliver E. Williamson, The Vertical Integration of Production: Market Failure Considerations, 61 Am. Econ. Rev. 112 (1971).
— Elimination of double marginalization
Enghin Atalay, Ali Hortaçsu & Chad Syverson, Vertical Integration and Input Flows, 104 Am. Econ. Rev. 1120 (2014) (finding that found that one half of upstream establishments do not ship to their integrated downstream divisions).
± Fernando Luco & Guillermo Marshall, Vertical Integration with Multiproduct Firms: When Eliminating Double Marginalization May Hurt Consumers (Dec. 7, 2018)
—Empirical studies
± Margaret E. Slade, Vertical Mergers:Ex Post Evidence and Ex Ante Evaluation Methods (June 2019)
± Hans-Theo Normann, Vertical Mergers, Foreclosure and Raising Rivals’ Costs–Experimental Evidence (Sept. 2010).
Vertical Information Conduits
Coca-Cola/CCE
—Acquisition
± Coca-Cola Enterprises, News Release, The Coca-Cola Company and Coca-Cola Enterprises Strategically Advance and Strengthen Their Partnership (Feb. 25, 2010)
± Investor Presentation (Feb. 25, 2010)
—Complaint
Complaint, In re Coca-Cola Co., C-4305 (FTC accepted for public comment Sept. 27, 2010) (FTC news release)
Fed. Trade Comm'n, News Release, FTC Puts Conditions on Coca-Cola's $12.3 Billion Acquisition of its Largest North American Bottler (Sept. 27, 2010)
—Consent settlement
Decision and Order (FTC accepted for public comment Sept. 27, 2010)
Agreement Containing Consent Order (Sept. 27, 2010)
Decision and Order (Sept. 27, 2010) (appendices A & B)
Analysis of Agreement Containing Consent Order to Aid Public Comment (Sept. 27, 2010)
Commission Letters Approving Monitor and Monitor Agreement (Oct. 7, 2010)
Final Decision and Order (Nov. 5, 2010) (Appendices A and B)
Conglomerate Theories
Economics
Conglomerate Effects of Mergers—Note by the United States, submitted to the OCED Directorate for Financial & Enterprise Affairs Competition Comm. (DAF/COMP/WD(2020)7, June 4, 2020).
± OECD Roundtable on Start-ups, Killer Acquisitions and Merger Control web page
Directorate for Financial & Enterprise Affairs Competition Comm.,Roundtable on Conglomerate Effects of Mergers - Background Note (DAF/COMP(2020)2 , May 24, 2020).
Directorate for Financial & Enterprise Affairs Competition Comm., Barriers to Entry (DAF/COMP(2005)42, Mar. 6, 2006).
± J. Thomas Rosch, Comm'r, Fed. Trade Comm'n, Terra Incognita: Vertical and Conglomerate Merger and Interlocking Directorate Law Enforcement, Remarks Before the University of Hong Kong (Sept. 11, 2009).
± Jeffrey Church, Conglomerate Mergers, in 2 Issues in Competition Law and Policy 1503 (ABA Section of Antitrust Law 2008).
± Bundeskartellamt, Conglomerate Mergers in Merger Control: Review and Prospects, Discussion paper for the meeting of the Working Group on Competition Law on 21 Sept. 2006.
± Damien J. Neven, The Analysis of Conglomerate Effects in EU Merger Control (Dec. 2005).
Conglomerate merger enforcement in the Nixon administration
Non-U.S. enforcement
± Organisation for Economic Co-operation and Development, Directorate for Financial and Enterprise Affairs Competition Committee, Vertical Mergers (DAF/COMP(2007)21, Nov. 12, 2007)
Director and Management Interlocks
Statute
± Clayton Act § 8, 15 U.S.C. § 19.
Reference Materials
Commentary
Donald F. Turner, Conglomerate Mergers and Section 7 of the Clayton Act, 78 Harv. L. Rev. 1313 (1965)
Recent vertical foreclosure cases
Complaint, United States v. Google, Inc., No. 1:11-cv-00688 (D.D.C. Apr. 8, 2011) (DOJ news release)
See below
Complaint, In re PepsiCo, Inc., Dkt. No. C-____ (FTC filed Feb. 26, 2010) (news release)
Agreement Containing Consent Order (Feb. 26, 2010)
Decision and Order (Feb. 26, 2010)
Analysis of Agreement Containing Consent Order To Aid Public Comment (Feb. 26, 2010)
± FTC web site
Recent vertical information flow cases
Vertical arithmetic
Serge Moresi & Steven C. Salop, vGUPPI: Scoring Unilateral Pricing Incentives in Vertical Mergers, 79 Antitrust L.J. 185 (2013).
European competition law
European Comm'n, Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings, 2008 O.J. (C 256) 6.
European Comm'n, Economic Advisory Group for Competition Policy (EAGCP), Merger Sub-Group, Non-Horizontal Mergers Guidelines: Ten Principles (Aug. 17, 2006).
± Patrick Maydell, Non-horizontal Mergers under the EC Merger Regulation (Stanford–Vienna Transatlantic Technology Law Forum, European Union Law
Working Paper No. 3, 2012).
Jeffrey Church, The Impact of Vertical and Conglomerate Mergers on Competition, Report Prepared for Directorate General for Competition Directorate B Merger Task Force, Eur. Comm'n (Sept. 2004).
Director and management interlocks
Robert F. Booth Trust v. Crowley, No. 10-3285 (7th Cir. 2012) (reported at 687 F.3d 314) (reversing and remanding with instructions to dismiss a derivative action) (± oral argument)
Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404 (1st Cir. 1985)
Borg-Warner Corp. v. FTC, 746 F.2d 108 (2d Cir. 1984)
Case Studies
Amgen/Horizon (FTC 2023)
Microsoft/Activision (FTC 2022)
Meta/Within (FTC 2022)
UnitedHealth Group/Change Healthcare (DOJ 2022)
Lockheed/Aerojet (FTC 2022)
Nvidia/ARM (FTC 2021)
Illumina/Grail (FTC 2021)
Visa/Plaid (DOJ 2020)
Staples/Essendant (FTC 2019)
CVS/Aetna
Northrop Grumman/Orbital (FTC 2018)
AT&T/Time Warner (DOJ 2017)
Mallinckrodt/Novartis AG (FTC 2017)
Mylan/Perrigo (FTC 2016)
Steris/Synergy Health (FTC 2015)
Medtronic/Covidien (FTC 2014)
Akorn/VersaPharm (FTC 2014)
Nielsen/Arbitron (FTC 2013)
General Electric/Avio (FTC 2013)
Deutsche Böurse/NYSE Euronext (DOJ 2011)
Google/ITA (DOJ 2011)
Ticketmaster/Live Nation (DOJ 2010)
TomTom/Tele Atlas//
Nokia/NAVTEQ (Eur. Comm'n 2008) |
AOL/Time Warner (FTC 2000)
Merch/Medco (FTC 1998)
Amgen/Horizon
(FTC 2023)
See Amgen/Horizon in Merger Litigation
Microsoft/Activision
(FTC 2022)
The deal
Press Release, Microsoft Corp., Microsoft To Acquire Activision Blizzard To Bring the Joy and Community of Gaming to Everyone, across Every Device (Jan. 18, 2022)
Agreement and Plan of Merger by and among Microsoft Corporation, Anchorage Merger Sub Inc. and Activision Blizzard, Inc. dated as of January 18, 2022
NB: Section 8.3(c) of the merger ageement provides for an antitrust reverse termination fee of (1) $2.0 billion if the termination notice is provided prior to January 18, 2023, (2) $2.5 billion if the termination notice is provided after January 18, 2023, and prior to April 18, 2023, or (3) $3.0 billion if the termination notice is provided at any time after April 18, 2023.
Microsoft Corp. & Activision Blizzard, Investor Presentation (Jan. 18, 2022)
Transcript of Investor Call (Jan. 18, 2022) (+ webcast)
Activision Blizzard, Inc., Form 10-K (for the Fiscal Year ended December 31, 2021)
+ Brad Smith, Microsoft’s Activision-Blizzard Acquisition Is Good for Gamers, Wall St. J. (Dec. 5, 2022)
N.D. Cal.
Complaint for a Temporary Restraining Order and Preliminary Injunction Pursuant to Section 13(b) of the Federal Trade Commission Act, FTC v. Microsoft Corp., No. 3:23-cv-02880 (N.D. Cal. filed June 12, 2023) (case reassigned to Judge Jacqueline Scott Corley). Price: $68.7 billion. Termination date: July 18, 2023. Reverse breakup fee: $3 billion.
Docket sheet (downloaded August 11. 2023)
Referral for Purpose of Determining Relationship (June 13, 2023)
Related Case Order (June 13, 2023) (relating case to Demartini v. Microsoft Corp., No. 22-cv-08991-JSC (N.D. Cal. filed Dec. 20, 2022) and reassigning cse from Judge Vince Chhabria to Judge Jacqueline Scott Corley)
Order re: Temporary Restraining Order and Preliminary Injunction (June 13, 2023) (entering TRO prohibiting the acquisition until after 11:59 p.m. Pacific Time on the fifth business day after the Court rules on the FTC’s request for a preliminary injunctionunder Federal Trade Commission Act § 13(b), 15 U.S.C. § 53(b), or a date set by the Court, whichever is later, and sets an evidentiary hearing on the preliminary injunction for June 22 and 23, 2023)
Opposition to Motion for Preliminary Injunction (June 17, 2023) (filed under seal)
Federal Trade Commission's Reply to Defendants' Opposition to Preliminary Injunction Motion (June 20, 2023) redacted public version)
Notice of Motion ad Motion for Expedited Case Management Conference (June 14, 2023) (by Microsoft and Activision)
Plaintiff Federal Trade Commission’s Notice of Intent To Oppose Defendants’ Motion for Expedited Case Management Conference (June 14, 2023)
Order re: Evidentiary Hearing on Preliminary Injunction Motion (June 14, 2023) (setting pre-evidentiary hearing/status conference set for 6/21/2023, and resetting evidentiary hearing for June, 22, 23, 27, 28, and 29, 2023)
Plaintiff Federal Trade Commission’s Notice of Motion and Motion for Protective Order (June 17, 2023)
[Proposed] Protective Order (June 17, 2023)
Joint Opposition to Plaintiff’s Motion for Protective Order (June 19, 2023)
Motion denied (June 21, 2023)
Status conference (June 21, 2023)
Order following June 21, 2023 Status Conference (June 21, 2023)
Plaintiff Federal Trade Commission’s Initial Proposed Findings of Fact and Conclusions of Law (June 20, 2023; redacted version filed June 22, 2023)
Defendants’ Proposed Pretrial Findings of Fact and Conclusions of Law (June 22, 2023)
PI hearing
Day 1 (June 22, 2023)
Plaintiff Federal Trade Commission’s Bench Brief Regarding Defendants’ Proffered Testimony Regarding Microsoft’s Agreements (June 22. 2023)
Day 2 (June 23, 2023)
Direct Testimony of Robin S. Lee, Ph.D (June 25, 2023) (redacted)
Declaration of Dennis W. Carlton (June 26, 2023) (redacted)
Declaration of Amy Hood (June 26, 2023) (redacted)
Day 3 (June 27, 2023)
Day 4 (June 28, 2023)
Day 5 (June 29, 2023)
Defendant Microsoft Corp.’s Answer and Defenses (June 29, 2023) (corrected)
Defendant Activision Blizzard, Inc.’s Answer and Affirmative Defenses (June 30, 2023) (corrected)
Plaintiff Federal Trade Commission’s Final Proposed Findings of Fact and Conclusions of Law (June 30, 2023; redacted version filed July 12, 2023)
Defendants’ Proposed Post-Trial Findings of Fact and Conclusions of Law (June 30, 2023; redacted corrected version filed July 13, 2023)
Preliminary Injunction Opinion (July 10, 2023; final redacted verion filed July 19, 2023)
Plaintiff’s Notice of Appeal (July 12, 2023)
Plaintiff Federal Trade Commission’s Rule 62(d) Motion for Injunction Pending Appeal (July 13, 2023)
Preliminary Response to Plaintiff’s Motion for Injunction Pending Appeal (July 13,. 2023)
Order Denying Plaintiff’s Motion for Injunction Pending Appeal (July 13, 2023)
Preliminary Injunction Opinion: Final Redacted Version (July 19, 2023)
Ninth Circuit
FTC v. Microsoft Corp., No. 23-15992 (9th Cir. docketed July 13, 2023)
Docket sheet (downloaded Nov. 6, 2023)
Motion for an Injunction Pending Appeal of the Federal Trade Commission (July 13, 2023)
Opposition to FTC’s Motion for an Injunction Pending Appeal (July 14, 2023)
Order (July 14, 2023) (denying motion)
Opening Brief of the Federal Trade Commission [Redacted] Aug. 28, 2023)
Defendants’-Appellees’ Answering Brief [Redacted] (Sept. 6, 2023)
Brief of Former State Attorneys General as Amici Curiae in Support of Affirmance in Part (Sept. 13, 2023)
Brief of Amicus Curiae Business Roundtable in Support of Appellees and Affirmance (Sept. 13, 2023)
Brief for the Chamber of Commerce of the United States of America as Amicus Curiae in Support of Appellees and Affirmance (Sept. 13, 2023)
Brief for Independent Game Publishers and Developers as Amici Curiae in Support of Defendants-Appellees (Sept. 13, 2023)
Brief of Venture Capital Firms as Amici Curiae in Support of Appellees Microsoft Corp. and Activision Blizzard, Inc. (Sept. 13, 2023)
Brief of Former Antitrust Enforcers as Amici Curiae in Support of Appellees and Affirmance (Sept. 13, 2023)
Brief for Economists and Antitrust Scholars as Amici Curiae in Support of Appellee and Affirmance (Sept. 13, 2023)
Brief of Amicus Curiae TechFreedom in Support of Appellees and Affirmance (Sept. 13, 2023)
Rely Brief of the Federal Trade Commission (Oct. 4, 2023; public version filed Nov. 11, 2023)
Appellees Activision Blizzard, Inc. and Microsoft Corporation citation of supplemental authorities (Oct. 13, 2023) (CMA decison approving transaction with conditions)
FTC response (Oct. 18, 2923)
Oral Argument scheduled for Wednesday, December 6, 2023
ALJ
Complaint, In re Microsoft Corp., No. 9412 (F.T.C. issued Dec. 8, 2022) (public version)
Press Release, Fed. Trade Comm'n, FTC Seeks To Block Microsoft Corp.’s Acquisition of Activision Blizzard, Inc. (Dec. 8, 2022)
Protective Order Governing Confidential Material (Dec. 9, 2022)
Answer and Defenses of Respondent Microsoft Corp. (Dec. 22, 2022)
Answer and Defenses of Respondent Activision Blizzard, Inc. (Dec. 22, 2022)
Order Granting Consent Motions for Leave To Amend Answer and Defenses (Jan. 4, 2023)
Amended Answer and Defenses of Respondent Microsoft Corp. (Jan. 4, 2023) (dropping the five originally asserted constitutional defenses)
Answer And Defenses Of Respondent Activision Blizzard, Inc. (Jan. 4, 2023) (same)
Scheduling Order (Jan. 4, 2023) (setting the first day of trial as August 2, 2023)
[Discovery closed]
Respondents’ Motion To Withdraw this Proceeding from Adjudication (July 18, 2023)
Order Withdrawing Matter from Adjudication Pursuant to Rule 3.26(c) of the Commission Rules of Practice (July 20, 2023)
European Union
European Commission Press Release IP/23/2705, Mergers: Commission Clears Acquisition of Activision Blizzard by Microsoft, Subject to Conditions (May 15, 2023)
United Kingdom
NB: Not all documents posted on the CMA website are included below
Press Release, U.K. Competition and Markets Authority, Microsoft–Activision Deal Could Harm UK Gamers (Feb. 8, 2023)
The CMA has provisionally found competition concerns as part of its in-depth investigation of the anticipated acquisition by Microsoft Corporation of Activision Blizzard, Inc.
Provisional findings report (Feb. 8, 2023)
Appendices and glossary (Feb. 8, 2023)
Summary of provisional findings (Feb. 8, 2023)
Notice of provisional findings (Feb. 8, 2023)
Notice of possible remedies (Feb. 8, 2023)
DJS Research report: PlayStation gamer research (Feb. 8, 2023)
Microsoft’s Response to the CMA's Remedies Notice (Feb. 22, 2023)
Responses to provisional findings
Microsoft’s response to the provisional findings (Mar. 3, 2023)
Activision’s response to the provisional findings (Mar. 3, 2023)
Sony Interactive Entertainment’s response to the provisional findings (Mar. 3, 2023)
Press release, U.K. Competition and Markets Authority, CMA narrows scope of concerns in Microsoft - Activision review (Mar. 24, 2023)
The CMA has provisionally concluded that the anticipated acquisition by Microsoft Corporation of Activision Blizzard, Inc. will not result in a substantial lessening of competition in relation to console gaming in the UK. The CMA's previously stated provisional view that deal raises concerns in cloud gaming remains unaffected. The investigation continues, with final report still due by 26 April 2023.
Addendum provisional findings report (Mar. 24, 2023)
Notice of addendum to provisional findings (Mar. 24, 2023)
Microsoft’s response to the addendum provisional findings (Apr. 6, 2023)
SIE’s response to the addendum provisional findings (Apr. 6, 2023)
Joost Rietveld response to the addendum provisional findings (Apr. 6, 2023)
Press release, U.K. Competition and Markets Authority, Microsoft/Activision deal prevented to protect innovation and choice in cloud gaming (Apr. 26, 2023)
Finding that the acquisition would alter the future of the fast-growing cloud gaming market, leading to reduced innovation and less choice for UK gamers in the future, and prohibiting the transaction
Final report (Apr. 26, 2023)
Appendices and glossary (Apr. 26, 2023)
Overview (Apr. 26, 2023)
Summary of final report (Apr. 26, 2023)
Interim Order (May 11, 2023) (enjoining transaction pending final determination)
Notice of intention to make a final order
Notice of intention to make a final order (May 19, 2023)
Draft final order (May 19, 2023)
Draft explanatory note (May 19, 2023)
Appeal: Microsoft Corp. v. Competition and Markets Authority, No. 1590/4/12/23 (U.K. Competition Appeal Tribunal)
Summary of application (May 26, 2023)
Transcript of case management conference (May 30, 2023)
Order of the President (Abridgment of Time) (June 2, 2023)
Order of the President (Directions) (June 8, 2023)
Ruling (Streaming of the Proceedings) | Summary (June 12, 2023)
Ruling (Admissibility of expert evidence) | Summary (June 12, 2023)
Case Management Conference (June 12, 2023) (setting hearing to commence on July 28, 2023, with a time estimate of five days)
DeMartini v. Microsoft Corp.
Complaint To Prohibit the Acquisition of Activision Blizzard by Microsoft Corporation in Violation of Section 7 of the Clayton Antitrust Act, 15 U.S.C. § 18, DeMartini v. Microsoft Corp., No. 3:22-cv-08991-JSC (N.D. Cal. filed Dec. 20, 2022)
Docket sheet (downloaded June 13, 2023)
Motion for Preliminary Injunction and Order To Show Cause (Dec. 20, 2022)
Defendant Microsoft Corporation’s Opposition to Plaintiffs’ Motion for Preliminary Injunction (Mar. 2, 2023)
Defendant Microsoft Corporation’s Notice of Motion and Motion To Dismiss; Memorandum of Points and Authorities in Support Thereof (Jan. 31, 2023)
Plaintiffs’ Opposition to Defendant’s Motion To Dismiss (Feb. 17, 2023)
Defendant Microsoft Corporation’s Reply in Support of Motion To Dismiss (Feb. 24, 2023)
Order Granting Motion to Dismiss (Mar. 20, 2023) (with leave to amend)
Order Setting Briefing Schedules on Plaintiffs Renewed Motion for Preliminary Injunction and Defendants Motion To Dismiss (Apr. 13, 2023)
Defendant Microsoft Corporation’s Notice of Motion and Motion To Dismiss First Amended Complaint; Memorandum of Points and Authorities (Apr. 19, 2023)
Plaintiffs’ Opposition to Motion To Dismiss First Amended Complaint (Apr. 28, 2023)
Defendant Microsoft Corporation’s Reply in Support of Motion To Dismiss Amended Complaint (May 3, 2023)
Motion for Preliminary Injunction and Order To Show Cause (Apr. 24, 2023)
Microsoft Corporation’s Opposition to Plaintiffs’ Motion for Preliminary Injunction (Irreparable Harm and Bond) (May 5, 2023)
Reply in Support of Motion for Preliminary Injunction and Order To Show Cause (May 8, 2023)
Order Denying Motion for Preliminary Injunction (May 19, 2023)
Notice of Appeal (June 2, 2023)
Representation Statement (June 2, 2023)
Ninth Circuit PI appeal
DeMartini v. Microsoft Corp., No. 23-15846 (9th Cir. docketed June 7, 2023)
Docket sheet (downloaded June 13, 2023)
Motion for Temporary Injunction Pending Appeal Redacted (June 9, 2023)
Related Case Order (June 13, 2023) (relating case to FTC v. Microsoft Corp., No. 3:23-cv-02880 (N.D. Cal. filed June 12, 2023))
Commentary
± David McCabe & Karen Weise, Can Big Tech Get Bigger? Microsoft Presses Governments to Say Yes, N.Y. Times.com (Nov. 21, 2022)
± Paul Tassi, Why Sony Is Never Going To Take Any ‘Call Of Duty’ Deal Xbox Offers, Forbes.com (Nov. 22, 2022)
± Florian Mueller, Forbes Is Spot-on that Sony Doesn't Want Microsoft To Keep Call of Duty on PlayStation: It Wants To Do Its Own Exclusive Deals with an Independent Activision Blizzard (as does Google!), FossPatents.com (Nov. 23, 2022)
± Florian Mueller, Microsoft Filing with UK Antitrust Authority CMA Indicates Fortnite on Xbox Cloud Gaming Hasn't Taken Off, Largely Because of Apple and Google: Activision Blizzard Merger Review, FossPatents.com (Nov. 23, 2022)
± Florian Mueller, Rumors about Microsoft-ActivisionBlizzard Approval Processes in U.S. (FTC lawsuit?) and EU (Clearance Conditioned upon Ten-Year Commitment to PlayStation?), FossPatents.com (Nov. 28, 2022)
± Josh Kosman, Rift at FTC Stirs Hope for Microsoft’s $69B Activision Merger: Sources, NYPost.com (Dec. 4, 2022)
± Florian Mueller, Split FTC Myay Very Well Clear Microsoft's $69B Purchase of Activision Blizzard Now: New York Post Article on Commissioner Slaughter's Stance Passes Plausibility Test, Appears to Have Substance, FossPatents.com (Dec. 5, 2022)
± Florian Mueller, Microsoft and CWA Labor Union Urge FTC To Consider Interests of Other Stakeholders--Gamers, Developers, Workers--before Embarking on Litigation against Acquisition of Activision Blizzard, FossPatents.com (Dec. 5, 2022)
+ Brad Smith, Microsoft’s Activision-Blizzard Acquisition Is Good for Gamers, Wall St. J. (Dec. 5, 2022)
± Microsoft Reaches 10-year Deal with Nintendo for Call of Duty, The Verge.com (Dec. 7, 2022)
± Andrew Ross Sorkin, Ravi Mattu, Stephen Gandel & Michael J. de la Merced, The Stakes Behind the F.T.C.’s Bid to Block Microsoft’s Big Deal, N.Y. Times DealBook (Dec. 9, 2022)
Meta/Within
(FTC 2022)
The deal
Jason Rublin, Meta VP of Play, Within to Join Meta, Meta Quest Blog (Oct. 29, 2021)
Jason Rubin, VP of Play, Within Joins Meta, Meta Quest Blog (Feb. 8, 2023)
N.D. Cal.
Complaint for a Temporary Restraining Order and Preliminary Injunction Pursuant to Section 13(b) of the Federal Trade Commission Act, FTC v. Meta Platforms, Inc., No. 5:22-cv-04325 (N.D. Cal. filed July 27, 2022) (public version) (3-2 Commission vote) (assigned to Judge Edward J. Davila)
Challenges Meta's proposed acquisition of privately-owned Within Limited, Inc., the maker of the popular virtual reality-dedicated fitness app Supernatural. The purchase prices is reportedly $400 million. The complaint alleges that the acquisition would eliminate competition in the relevant market for VR dedicated fitness apps and the broader market for VR fitness apps. The complaint does not allege that Meta currently competes in the relevant markets or that Meta is currently developing or had plans to develop a competing dedicated fitness app absent the acqusition. Rather, the complaint alleges that Meta would develop its own dedicated fitness app (perhaps extending the functionality of its Beat Saber rhythm app) if it was prevented from acquiring Within given its hopes of "controlling a VR 'metaverse.'" This is an extension beyond what current law recognizes under the actual potential competition theory of anticompetitive harm. The complaint also alleges that "[t]he acquisition of new users, content, and developers each feed into one another, creating a self-reinforcing cycle that entrenches the company’s early lead" (entrenchment--Compl. ¶ 6) and a "wings" effect, including on Within (perceived potential competition--Compl. ¶¶ 11, 106, 111-116 (all redacted)). The complaint does try to make out a horizontal overlap by alleging that Within and Meta's Beat Saber are both in the VR fitness app market (Compl. ¶ 12), although this appears to be more of afterthought to enable the Commission to invoke the PNB presumption than a central theory of anticompetitive harm. Notably, the complaint joins controlling shareholder Mark Zuckerberg as the controlling shareholder. (The complaint admits that "incidental fitness category includes VR apps whose primary focus is not fitness, but that allow users to get a workout as a byproduct of their use because of the physically active nature of these apps."--Compl. ¶ 51))
Press Release, Fed. Trade Comm'n, FTC Seeks to Block Virtual Reality Giant Meta’s Acquisition of Popular App Creator Within (July 27, 2022)
Nikhil Shanbhag, Meta VP and Associate General Counsel, Competition and Regulatory, The FTC’s Attempt to Block Meta’s Acquisition of Within Is Wrong on the Facts and the Law (July 27, 2022) (noting that the complaint followed a nine-month investigation)
Docket sheet (downloaded Dec. 29, 2022)
Order Setting Initial Case Management Conference and ADR Deadlines (July 27, 2022)
Plaintiff Federal Trade Commission’s Notice of Motion and Emergency Motion for Temporary Restraining Order; Memorandum of Points and Authorities (July 27, 2022)
Joint Stipulation and [Proposed] Order (July 28, 2022) (so ordered Aug. 5, 2022) (agreeing that the merging parties will not consummate the proposed Acquisition until after August 6, 2022 at 11:59 p.m. Pacific Time to permit Meta, Within and the Commission to seek an agreement on a scheduling and case management order that would obviate the need for a ruling on Plaintiff’s Emergency Motion for a Temporary Restraining Order)
[Proposed] Joint Stipulated Case Management Order (Aug. 12, 2022)
[Proposed] Joint Stipulated Discovery Plan and Briefing Schedule (Aug. 22, 2022)
Joint Stipulated Discovery Plan and Briefing Schedule (Sept. 6, 2022) (as modified by the Court)
[Proposed] Protective Order (Aug. 22, 2022)
Protective Order As Modified by the Court (Aug. 24, 2022) (containing redline)
Joint Stipulation of Dismissal of Mark Zuckerberg (Aug. 23, 2022)
Defendant Meta Platforms, Inc.’s Answer and Affirmative Defenses (Aug. 26, 2022)
Defendant Within Unlimited, Inc.'s Answer and Affirmative Defenses (Aug. 26, 2022)
Plaintiff Federal Trade Commission’s Motion To Strike Defendants’ Affirmative Defenses (Sept. 9, 2022)
Defendants’ Opposition to FTC’s Motion To Strike Defendants’ Affirmative Defenses (Sept. 23, 2022)
Plaintiff’s Reply to Defendants’ Opposition to Plaintiff’s Motion To Strike Defendants’ Affirmative Defenses (Sept. 30, 2022)
Order Granting in Part Motion To Strike (Nov. 2, 2022)
Stipulation and [Proposed] Order To Amend Complaint (Oct. 7, 2022) (motion granted Oct. 13, 2022)
Amended Complaint for a Preliminary Injunction Pursuant to Section 13(b) oftThe Federal Trade Commission Act (Oct. 7, 2022)
Defendants’ Motion To Dismiss Amended Complaint (Oct. 13, 2022)
Joint Statement of Recent Decision (Oct. 17, 2022) (reporting full Commission's consideration of meta's motion to disqualify Chair Khan)
Declaration of Chantale Fiebig in Support of the Parties' Joint Statement of Recent Decision (Oct. 17, 2022)
Exhibit A. Letter from the FTC
Plaintiff’s Opposition to Defendants’ Motion to Dismiss Amended Complaint (Oct. 27, 2022)
Defendants’ Reply in Support of Motion To Dismiss Amended Complaint (Oct. 31, 2022)
Clerks Notice Taking Motion under Submission without Oral Argument (Dec. 2, 2022)
Plaintiff Federal Trade Commission’s Final Party Fact Witness List (Oct. 28, 2022) (Nov. 21, 2022, version)
Defendants Meta Platforms, Inc.'s and Within Unlimited, Inc.'s Final Party Fact Witness List (Oct. 28, 2022) [No. 155]
Plaintiff Federal Trade Commission’s Final Non-Party Fact Witness List (Nov. 18, 2022)
Defendants’ Opposition to Plaintiff’s Motion in Limine (Nov. 28, 2022)
Plaintiff Federal Trade Commission’s Memorandum of Points and Authorities in Support of Motion for a Preliminary Injunction (Oct. 31, 2022) (public version) (Nov. 15 version)
Defendants’ Opposition to Plaintiff’s Motion for a Preliminary Injunction (Nov. 14, 2022)
Plaintiff Federal Trade Commission’s Reply to Defendants’ Opposition to Preliminary Injunction Motion (Nov. 21, 2022)
Plaintiff Federal Trade Commission’s Pre-Hearing Proposed Findings of Fact and Conclusions of Law (Nov. 21, 2022)
Defendants’ Proposed Findings of Fact and Conclusions of Law (Nov. 21, 2022)
PI hearing--Scheduled to begin December 8, 2022 (providing for five trial days between December 8 and December 20--18 hours for each side
Day 1 - December 8
Day 2 - December 9
Day 3 - December 13
Day 4 - December 14
Day 5 - December 16
Day 6 - December 19
Day 7 - December 20
(including Mark Zuckerberg)
Defendants’ Motion To Strike Expert Testimony of Dr. Hal J. Singer (Dec. 15, 2022)
Plaintiff Federal Trade Commission’s Opposition to Defendants’ Motion To Strike (Dec. 29, 2022)
Joint Stipulation and [Proposed] Order re: Temporary Restraining Order (Dec. 19, 2022) (extending TRO from December 31, 2023, to Janaury 31, 2023) (so ordered Dec. 21, 2022)
Plaintiff Federal Trade Commission’s Post-Hearing Proposed Findings of Fact and Conclusions of Law (Dec. 23, 2022)
Defendants’ Proposed Post-Hearing Findings of Fact and Conclusions of Law (Dec. 23, 2022)
Plaintiff’s Emergency Motion for an Extension of the Joint
Stipulated TRO (Jan. 31, 2923)
Note: The Stipulated TRO permitted the defendants to close after January 31, 2023.
The court issued a sealed order issued January 31, 2023. Public reporting indicates that the court extended the TRO for seven days to permit the FTC to appeal the court's denial of the FTC's motion for a preliminary injunction..
Order Denying Plaintiff's Motion for Preliminary Injunction (Jan. 31, 2023; public version Feb. 3, 2023) (denying the FTC's motion for a preliminary injunction)
± U.S. FTC Will Not Appeal Decision Allowing Meta To Purchase VR Content Maker Within, Reuters.com (Feb. 6, 2023)
ALJ administrative proceeding
Complaint, In re Meta Platforms, Inc., No. 9411 (issued Aug. 11, 2022) (3-2)
Order Denying Petition for Recusal (Feb. 1, 2023)
Dissenting Statement of Commissioner Christine S. Wilson (Feb. 1, 2023)
Respondent’s Motion To Stay this Administrative Proceeding (Aug. 26, 2022)
Complaint Counsel’s Opposition to Respondent Meta Platforms, Inc.’s Motion To Stay this Administrative Proceeding (Sept. 6, 2022)
Letter from FTC Secretary to Counsel (Oct. 6, 2022)
Order Extending Deadline To Rule on Respondent’s Motion To Stay (Oct. 21, 2022) (extending deadline to November 30, 2022)
See 16 C.F.R. § 3.22(a) (“Except as otherwise provided by an applicable rule, motions not referred to the Administrative Law Judge shall be ruled on by the Commission within 45 days of the filing of the last-filed answer or reply to the motion, if any, unless the Commission determines there is good cause to extend the deadline.”).
Order Further Extending Deadline To Rule on Respondent’s Motion To Stay (Nov. 30, 2022) (extending deadline to December 21, 2022)
Supplemental Order Extending Deadline To Rule on Respondent’s Motion To Stay (Dec. 21, 2020) (extending deadline to January 19, 2023)
NB: The administrative trial is scheduled to begin on January 19, 2023. See Scheduling Order, FTC File No. 221-0040 (Sept. 2, 2022),
Order Denying Motion To Stay (Jan. 17, 2023)
Respondent Meta Platforms, Inc.’s Answer and Affirmative Defenses to Petitioner’s Complaint (Aug. 22, 2022)
Respondent Mark Zuckerberg’s Answer and Affirmative Defenses to Petitioner’s Complaint (Aug. 29, 2022)
Scheduling Order (Sept. 2, 2022)
Complaint Counsel’s Unopposed Motion To Amend Complaint (Oct. 10, 2022)
Order Granting Unopposed Motion To Amend Complaint (Oct. 13, 2022)
Amended Complaint (Oct. 13, 2022)
Joint Expedited Motion To Continue the Evidentiary Hearing until February 13, 2023 (Jan. 27, 2023)
Order Granting Continuance (Jan. 11, 2023) (continuing evidentiary hearing until February 13, 2023)
First Revised Scheduling Order (Jan. 11, 2023)
Respondents’ Motion To Withdraw this Proceeding (Feb. 8, 2023)
Order Withdrawing Matter from Adjudication Pursuant to Rule 3.26(c) of the Commission Rules of Practice (Feb. 10, 2023)
Order Returning Matter to Adjudication and Dismissing Complaint (Feb. 24, 2023)
Commentary
± Brian Heater, Meta (Facebook) Is Buying Within, Creators of the ‘Supernatural’ VR Fitness App, TechCrunch.com (Oct. 29, 2021)
± FTC’s Khan Overruled Staff to Sue Meta Over VR App Deal, BloombergLaw.com (July 29, 2022).
± David McCabe & Mike Isaac, F.T.C. Sues to Block Meta’s Virtual Reality Deal as It Confronts Big Tech, N.Y. Times.com (July 27, 2022)
± Kathryn Hardison, FTC Seeks to Block Meta Platforms From Acquiring Within Unlimited, Wall St. J. (July 27, 2022)
± Ben Lang, FTC Sues to Block Meta’s Acquisition of Top VR Fitness App Developer, RoadToVR.com (updated July 27, 2022)
± Cecilia Kang, F.T.C. Chair Upends Antitrust Standards With Meta Lawsuit, N.Y. Times.com (July 28, 2022)
± Scott Stein, Meta Completes Acquisition of VR Fitness Company Within, CNET.com (Feb. 8, 2023)
± Maria Deutscher, Meta Completes Within Unlimited Acquisition after Winning Antitrust Case (Feb. 9, 2023)
United Health/Change Healthcare
(DOJ 2022)
See United States v. United Healthcare Group in Merger Litigation
Lockheed Martin/Aerojet
(FTC 2022)
The deal
Press Release, Lockheed Martin Corp., Lockheed Martin to Acquire Aerojet Rocketdyne, Strengthening Position as Leading Provider of Technologies to Deter Threats and Help Secure the United States and its Allies (Dec. 20, 2020)
Press Release, Lockheed Martin Corp., Investor Presentation (Dec. 21, 2020)
Press Release, Lockheed Martin Corp., Lockheed Martin Statement on Second Request from Federal Trade Commission (Feb. 19, 2021)
Press Release, Lockheed Martin Corp., Lockheed Martin Terminates Agreement to Acquire Aerojet Rocketdyne (Feb. 13, 2022)
FTC
Complaint, In re Lockheed Martin Corp., No. 9405 (F.T.C. issued Jan. 25, 2022)
Press Release, Fed. Trade Comm'n, FTC Sues to Block Lockheed Martin Corporation’s $4.4 Billion Vertical Acquisition of Aerojet Rocketdyne Holdings Inc. (Jan. 25, 2022)
Press Release, U.S. Dep't of Defense, DoD Statement on Proposed Lockheed Martin and Aerojet Rocketdyne Merger (Jan. 25, 2022)
Press Release, Lockheed Martin Corp., Lockheed Martin Terminates Agreement to Acquire Aerojet Rocketdyne (Feb. 13, 2022)
Joint Motion to Dismiss Complaint (Feb. 14, 2022)
Commentary
± Loren Thompson, FTC Move To Block Lockheed-Aerojet Merger Could Push Rocket Maker into the Arms of Private Equity, Forbes.com (Jan. 26, 2022)
Nvidia/ARM
(FTC 2021)
The deal
Nvidia Corporation, Press Release, NVIDIA to Acquire Arm for $40 Billion, Creating World’s Premier Computing Company for the Age of AI (Sept. 13, 2020)
NB: The Share Purchase Agreement provides for a $2 billion payment at signing consisting of a $750 million license fee to Arm and a prepayment of $1.25 billion to Softbank that is not refundable in the event the transaction fails to close because of the antitrust conditions.
± Eric J. Savitz, SoftBank Deal to Sell Arm Has $1.25 Billion Breakup Clause. Nvidia Pays $750 Million Licensing Fee, Barron's, Sept. 18, 2020.
Nvidia Corporation, Form 8-K (Sept. 13, 2020)
Nvidia Corporation, Investor Presentation: Nvidia to Acquire Arm (Sept. 13, 2020)
Rick Merritt, Nvidia Corporation, Blog Post: NVIDIA, Arm CEOs Share Vision of a Deal Made for a Hypergrowth Era (June 17, 2021)
FTC
Complaint, In re Nvidia Corp., No. 9404 (F.T.C. issued Dec. 2, 2021)
Press Release, Fed. Trade Comm'n, FTC Sues to Block $40 Billion Semiconductor Chip Merger (Dec. 2, 2021)
United Kingdom
Competition & Markets Authority, NVIDIA—Arm: A Report to the Secretary of State for Digital, Culture, Media & Sport on the Anticipated Acquisition by NVIDIA Corporation of Arm Limited (July 20, 2021).
Commentary
± Therese Poletti, Opinion: Nvidia’s ARM Acquisition Is Stalled, and There’s a Deadline with More than a Billion Dollars at Stake, MarketWatch.com, Aug. 21, 2020.
± Therese Poletti, Opinion: Nvidia’s Deal for ARM Is Dead—How Long until CEO Jensen Huang Admits It?, MarketWatch.com, Dec. 4, 2021.
± Ian King, SoftBank Poised to Lose $74 Billion Payday If Arm Deal Is Halted, Bloomberg.com, Dec. 3, 2021.
Illumina/Grail
(FTC 2001)
Visa/Plaid
(DOJ 2020)
The deal
Press Release, Visa Inc., Visa to Acquire Plaid (Jan. 13, 2020)
Visa Inc., Visa's Acquisition of Plaid (Jan. 13, 2020) (investor presentation)
Press Release, Visa Inc., Visa Statement on Planned Acquisition of Plaid (Nov. 5, 2020)
D.D.C.
Complaint, United States v. Visa, No. 3:20-cv-07810 (N.D. Cal. filed Nov. 5, 2020)
Challenging Visa Inc.’s proposed $5.3 billion acquisition of Plaid Inc. under Clayton Act § 7 and Sherman Act § 2 (monopoly maintenance). The complaint alleged that Visa is a monopolist in online debit transactions (controlling 70% of the market) and that Plaid, an innovative financial technology firm, was developing a new technology that could be used as a part of a disruptive, lower-cost option for online debit payments. The complaint alleged that Visa’s CEO viewed the acquisition as an “insurance policy” to protect against a “threat to our important US debit business” and that if Plaid remained free to develop its competing payment platform, then “Visa may be forced to accept lower margins or not have a competitive offering.” The complaint concluded that if Visa was allowed to acquire Plaid, consumers would be deprived of a low-cost alternative to visa debit and new innovators in online debit payment solutions would face increased barriers to entry. Note: The complaint also alleged that Plaid was in fact developing an alternative to Visa online debit card, although it did not allege when Plaid's alternative would be available in the market or how successful it was likely to be.
Press Release, U.S. Dep’t of Justice, Justice Department Sues to Block Visa's Proposed Acquisition of Plaid (Nov. 5, 2020)
Docket sheet (downloaded Jan. 13, 2021)
Joint Stipulation and [Proposed) Protective Order (Nov. 25, 2020)
Defendant Visa Inc.’s Answer to Complaint (Nov. 27, 2020)
Defendant Plaid Inc.’s Answer to Complaint (Nov. 27, 2020)
Joint Stipulation and [Proposed] Modification to Protective Order (Dec. 11, 2020)
Joint Case Management Statement and Discovery Plan; [Proposed] Order Filed Concurrently Herewith (Dec. 11, 2020)
Exhibit A: Defendants’ Memorandum of Points and Authorities in Support of Motion for Judgment on the Pleadings
Joint Stipulation and [Proposed] Order Regarding Case Schedule (Dec. 18, 2020)
Order Scheduling Trial and Pretrial Matters (Dec. 18, 2020)
Joint Stipulation and [Proposed] Discovery Order (Jan. 6, 2021)
News Release, Visa Inc. & Plaid, Visa and Plaid Announce Mutual Termination of Merger Agreement (Jan. 12, 2021)
Joint Stipulation of Dismissal (Jan. 12, 2021) (entered Jan. 12, 2021)
United Kingdom
Press Release, U.K. Competition & Markets Authority, Deal between Visa and Plaid Given the Go-Ahead (Aug. 24, 2020)
Decision (Oct. 5, 2020)
Commentary
± Editorial Board, Visa Is Doing What Big American Companies Do to ‘Protect This Business’, NYT.com (Dec. 2, 2020)
± Cara Lombardo & AnnaMaria Andriotis, Visa to Pay $5.3 Billion for Fintech Startup, WSJ.com (Jan. 13, 2020)
± Telis Demos, Visa’s Bet on Plaid Is Costly but Necessary, WSJ.com (Jan. 14, 2020)
± Ron Shevlin, What’s Visa Going To Do With Plaid?, Forbes.com (Jan. 20, 2020)
± Brent Kendall, AnnaMaria Andriotis & Peter Rudegeair, Visa Abandons Planned Acquisition of Plaid After DOJ Challenge, WSJ.com (Jan. 12, 2021)
± Alex Wilhelm, Visa Will Not Acquire Plaid after Running into Regulatory Wall, TechCrunch.com (Jan. 12, 2021)
± Jen Wieczner & David Z. Morris, Plaid without Visa? It Might Be a Blessing in Disguise, Fortune.com (Jan. 13, 2021)
Staples/Essendant
(FTC 2019)
The deal
Genuine Parts Company & Essendant Inc., News Release, Essendant And Genuine Parts Company's S.P. Richards Business To Combine To Form Stronger, More Competitive National Business Products Distributor (Apr. 12, 2018)
Essendant and S.P. Richards: A Stronger, More Competitive Distributor of Business Products (Apr. 12, 2019)
Essendant inc., Form 8-K (Apr. 12, 2018)
Essendant inc., Form 425 (Apr. 12, 2018) (communications toolkit for Essendant employees in dealing with customers)
Essendant inc., Form 425 (Apr. 12, 2018) (letter to valued partners)
Essendant inc., Form 425 (Apr. 12, 2018) (talking points for team meetings)
Essendant inc., Form 425 (Apr. 12, 2018) (analyst call transcript)
Genuine Parts Company & Essendant Inc., News Release, Essendant Confirms Receipt of Two Proposals: An Unsolicited All-Cash Offer from Staples, Inc. and a Contingent Cash Payment from Genuine Parts Company As an Enhancement to the Agreed Upon Merger (May 16, 2018)
Genuine Parts Company, News Release, Genuine Parts Company Comments On Definitive Merger Agreement With Essendant Following Staples' Conditional, Non-Binding Proposal To Acquire Essendant (May 16. 2018)
Essendant Inc., Essendant Provides Update on Proposed Merger with GPC’S S.P. Richards Business: Receives Second Request from FTC (June 6, 2018)
Essendant inc., News Release, Essendant Board Determines Staples Offer Constitutes A "Superior Proposal" To S.P. Richards Transaction (Sept 10, 2018)
Genuine Parts Company, News Release, Genuine Parts Company Comments On Notification From Essendant; Continues To Believe S.P. Richards Merger Agreement With Essendant Remains Superior (Sept. 10, 2018)
Consent decree
Complaint, In re Sycamore Partners II, L.P., No. C-4667 (F.T.C. filed Jan. 25, 2019)
NB: Sycamore is the private equity owner of Staples
Fed. Trade Comm'n, News Release, FTC Imposes Conditions on Staples’ Acquisition of Office Supply Wholesaler Essendant Inc. (Jan. 28, 2019)
Statement of Chairman Joseph J. Simons, Commissioner Noah Joshua Phillips, and Commissioner Christine S. Wilson'
Statement of Commissioner Rohit Chopra
Statement of Commissioner Rebecca Kelly Slaughter
Statement of Commissioner Christine S. Wilson
Agreement Containing Consent Orders (Jan. 25, 2019)
Decision and Order(Jan. 25, 2019)
Analysis of Agreement Containing Consent Orders to Aid Public Comment (Jan. 25, 2019)
CVS/Aetna
The deal
CVS Health Corp. & Aetna Inc., Press Release, CVS Health to Acquire Aetna; Combination to Provide Consumers with a Better Experience, Reduced Costs and Improved Access to Health Care Experts in Homes and Communities Across the Country (Dec. 3, 2017)
Investor call prepared remarks
Commentary
± Sarah Kliff, A Health Merger Expert Explains the CVS-Aetna Deal, Vox.com (Dec. 4, 2017)
Northrop Grumman/Orbital
(FTC 2018)
The deal
Northrop Grumman and Orbital ATK, Press Release, Northrop Grumman to Acquire Orbital ATK for $9.2 Billion (Sept. 18, 2017)
The consent decree
Complaint, In re Northrop Grumman Corp., No. C-4652 (F.T.C. issued June 5, 2018)
Fed. Trade Comm'n, News Release, FTC Imposes Conditions on Northrop Grumman’s Acquisition of Solid Rocket Motor Supplier Orbital ATK, Inc. (June 5, 2018)
Agreement Containing Consent Orders (June 5, 2018)
Decision and Order(June 5, 2018)
Analysis of Agreement Containing Consent Orders to Aid Public Comment (June 5, 2018)
Federal Register Notice (June 14, 2018)
Modified Decision and Order (Dec. 3, 2018)(FTC news release)
Fed. Trade Comm'n, News Release, FTC Approves Modified Final Order Imposing Conditions on Northrop Grumman’s Acquisition of Solid Rocket Motor Supplier Orbital ATK, Inc. (Dec. 4, 2018)
Aftermath
Northrop Grumman and Orbital ATK, Press Release, Northrop Grumman Completes Orbital ATK Acquisition, Blake Larson Elected to Lead New Innovation Systems Sector (June 6, 2018)
AT&T/Time Warner
(DOJ 2017)
The deal
See generally ± Manalo LLP, Time Warner/AT&T Timeline
AT&T Inc. & Time Warner Inc., Press Release, AT&T to Acquire Time Warner (Oct. 22, 2016)
AT&T analyst call transcript (Oct. 22, 2016) (presentation)
AT&T Inc., Form 425 (Oct. 24, 2016) (re AT&T Statement on TWX-TWC Confusion)
AT&T Inc., Form 425 (Oct. 24, 2016) (AT&T Acquires Time Warner – Q&A)
AT&T Inc., Form S-4 (Nov. 18, 2016) (preliminary) (excerpt: Background of the transaction)
AT&T Inc., Form 8-K (Dec. 21, 2017) (parties amend agreement to extend termination date to June 22, 2018)
AT&T Inc., Amendment No. 2 to Form S-4 (preliminary filed Jan. 5, 2017) (providing details of progress of deal) (summary of regulatory approvals section)
Time Warner, Form 10-K for the fiscal year ending December 31, 2016 (filed Feb. 23, 2017)
AT&T Inc., Form 8-K (June 15, 2018) (reporting on closing of transaction)
DOJ action
Complaint, United States v. AT&T Inc., No. 1:17-cv-02511 (D.D.C. filed Nov. 20, 2017)
Case Assigned to Judge Christopher R. Cooper
Reassigned to Judge Richard Leon
(who entered the Comcast/NBCUniversal consent decree)
Docket sheet (downloaded June 26, 2018)
U.S. Dep’t of Justice, Antitrust Div., Press Release, Justice Department Challenges AT&T/DirecTV’s Acquisition of Time Warner (Nov. 20, 2017)
AT&T Inc., News Release, AT&T Statement on Latest Developments in Proposed Acquisition of Time Warner, Inc. (Nov. 20, 2017)
Background on DOJ: Vertical Merger Precedent
Background on the Government's Lawsuit
± AT&T web page on Time Warner acquisition
AT&T Inc., Form 8-K (filed Nov. 29, 2017) (reporting exercise of right to extend merger agreement termination date to April 22, 2018)
Answer (Nov. 28, 2017)
Defendants' Motion to Set Trial Date (Nov. 28, 2017)
Exhibit A: Letter to Makan Delrahim (Nov. 21, 2017)
Exhibit B: [Proposed] Scheduling and Case Management Order
Exhibit C:
DOJ Investigation Timeline
Exhibit D:
[Proposed] Order Setting Trial Date
Plaintiff’s Response to Defendants’ Motion to Set Trial Date (Dec. 4, 2017)
Plaintiff’s Motion to Enter Scheduling and Case Management Order and Memorandum in Support (Nov. 28, 2017)
Exhibit A: Plaintiff’s Proposed Scheduling and Case Management Order
Exhibit B: Comparison of CMO Schedule and Provisions Proposed by Plaintiff and Defendants
Exhibit C: Declaration of Lauren G.S. Riker
Defendants’ Response to Plaintiff’s Motion for Scheduling Order (Dec. 4, 2017)
Status conference transcript (Feb. 16, 2018) (re discovery request on selective prosecution defense)
Trial date set for March 19, 2017 (Dec. 7, 2017)
Protective Order (Dec. 8, 2017)
Motion for Leave to File Amicus Curiae Brief and [Proposed] Amicus Curiae Brief of Dr. Carter Page in Support of Plaintiff's Complaint (Dec. 12, 2017)
Brief of Amicus Curiae Carter Page in Support of Plaintiff's Complaint (Dec. 12, 2017)
Plaintiff’s Response to Motion for Leave to File Amicus Curiae Brief of Dr. Carter Page (Dec. 12, 2017)
MINUTE ORDER denying 38 Motion for Leave to File Amicus Curiae Brief. It is hereby ORDERED that the motion is DENIED. Signed by Judge Richard J. Leon on 12/20/2017.
Status conference (transcript) (Dec. 21, 2018)
Case Management Order (Dec. 21, 2017)
Scheduling Order (Dec. 21, 2017)
Amended Protective Order (Dec. 29, 2017)
Status conference (transcript) (Feb. 2, 2018)
Expert Report of Carl Shapiro (Feb. 2, 2018) (public version)
Rebuttal Report of Carl Shapiro (Feb. 26, 2018) (public version)
Supplemental Expert Report of Carl Shapiro (Apr. 21, 2018) (public version)
Expert Report of Dennis W. Carlton (Feb. 2, 2018) (public version)
Rebuttal Expert Report of Dennis W. Carlton (Feb. 26, 2018) (public version)
Memorandum Opinion and Order (Feb. 20, 2018) (denying defendants' oral motion to compel production of the requested privilege logs relating to their selective enforcement defense)
Supplemental Scheduling Order (Mar. 7, 2018)
Motion for Leave by Former Department of Justice Officials to File Brief Amici Curiae in Support of Neither Party (Mar. 8, 2018)
Brief of Former Department of Justice Officials as Amici Curiae in Support of Neither Party (Mar. 8, 2018)
Plaintiff’s Response to Motion for Leave to File Amicus Curiae Brief of The Protect Democracy Project, Inc. (Mar. 9, 2018)
MINUTE ORDER. Upon consideration of Sealed Motion filed by United States of America, filed publicly as 85 The United States' Motion in Limine to Exclude or Limit Evidence of Defendants' Arbitration Offer, and defendants' opposition thereto, it is hereby ORDERED that the motion is DENIED. It is further ORDERED that Motion for Leave by Former Department of Justice Officials to File Brief Amici Curiae in Support of Neither Party is DENIED. SO ORDERED. Signed by Judge Richard J. Leon on 3/13/2018. (lcrjl1)
Trial Brief of the United States (Mar. 9, 2018) (redacted)
Pretrial Brief of Defendants AT&T Inc., DirecTV Group Holdings, LLC, and Time Warner Inc. (Mar. 9, 2018) (redacted)
Joint Statement on the Burden of Proof at Trial (Mar 13, 2018)
The United States’ Motion In Limine to Exclude or Limit Evidence of Defendants’ Arbitration Offer (Mar. 9, 2018) (motion to file under seal denied)
Defendants’ Opposition to the United States’ Motion In Limine (Mar. 13, 2018) (some exhibits under seal)
Exhibit 1: Arbitration Procedures
Exhibit 2: Excerpt form Stankey deposition
Order on Motion for Leave to File Order on Sealed Motion Order on Motion in Limine (Mar. 13, 2018):
MINUTE ORDER. Upon consideration of 78 Sealed Motion filed by United States of America, filed publicly as 85 The United States' Motion in Limine to Exclude or Limit Evidence of Defendants' Arbitration Offer, and defendants' opposition thereto, it is hereby ORDERED that the motion is DENIED. It is further ORDERED that 73 Motion for Leave by Former Department of Justice Officials to File Brief Amici Curiae in Support of Neither Party is DENIED. SO ORDERED. Signed by Judge Richard J. Leon on 3/13/2018. (lcrjl1)
Evidentiary hearing transcript (Mar. 19, 2018) (morning)
Evidentiary hearing transcript (Mar. 19, 2018) (afternoon)
Evidentiary hearing transcript (Mar. 20, 2018) (morning)
Trial
March 22: Opening arguments (morning) (afternoon)
March 26: Plaintiff's Witness: Warren Schlichting. (morning) (afternoon)
March 27: Plaintiff's Witnesses: Warren Schlichting, John Kevin Martin, Jr. (morning) (afternoon)
March 28: Plaintiff's Witnesses: John Kevin Martin, Jr., and Marty Hinson.(morning) (afternoon)
March 29: Plaintiff's Witnesses: Professor John Hauser and Gregory Rigdon (morning) (afternoon)
April 2: Plaintiffs' Witnesses: Breece Coleman Breland and Richard Warren (morning) (afternoon)
April 3: Plaintiff Witnesses: Richard Warren, Stefan Kyle Bewley and Tom Montemagno (morning) (afternoon)
April 4: Plaintiff's Witnesses: Tom Montemagno, Vincent Torres, Simon Sutton, Hanny Patel and Daniel York (morning) (afternoon)
April 5: Plaintiff's Witnesses: Daniel York, Timothy David Gibson and Gregory Stephen Manty (morning) (afternoon)
April 9: Plaintiff's Witnesses: Devin Merrill and John Harran (morning) (afternoon closed)
April 10: Plaintiff's Witnesses: Madison Bond and Daniel York (morning closed) (afternoon)
April 11: Plaintiff's Witness: Carl Shapiro (DOJ expert economist) (morning) (afternoon closed)
April 12: Defense Witness: Dennis Carlton (defense expert economist) (morning closed) (afternoon)
April 16: Defense Witnesses: Michael Katz and Peter Rossi (morning)
April 17: Plaintiff Witness: Jim Holanda. Defense Witnesses: Peter Rossi and David Christopher (morning) (afternoon)
April 18: Defense Witnesses: Jeffrey Lawrence Bewkes and John Thomas Stankey
(morning) (afternoon)
April 19:
Defense Witnesses: John Thomas Stankey and Randall Stephenson; Plaintiff's Witness: Ronald Gary Quintero (morning) (afternoon)
April 23: Plaintiff Witnesses: Ronald Gary Quintero and Susan Athey (morning) (afternoon)
April 24: Plaintiff's Witness: Carl Shapiro (morning) (afternoon closed)
April 26: Plaintiff's Witness: Carl Shapiro (morning closed) (afternoon)
April 30: No witnesses (morning) (afternoon)
Directv’s Motion to Dismiss or for Entry of Judgment in Its Favor (Apr. 17, 2018)
The United States’ Opposition to Directv’s Motion to Dismiss Directv As a Defendant or for Entry of Judgment in Its Favor (Apr. 19, 2018)
MINUTE ORDER. Upon consideration of DIRECTV'S Motion to Dismiss or for Entry of Judgment in Its Favor, and the United States' opposition thereto, it is hereby ORDERED that the motion is DENIED. SO ORDERED (Apr. 27, 2018)
Post-Trial Brief of the United States (May 3, 2018; public version May 8, 2018)
Proposed Findings of Fact of the United States (May 3, 2018; public version May 8, 2018)
Proposed Conclusions of Law of the United States (May 3, 2018; public version May 8, 2018)
Post-Trial Brief of Defendants AT&T Inc., Directv Group Holdings, LLC, and Time Warner Inc. (May 3, 2018)
Defendants’ Proposed Findings of Fact and Conclusions of Law (May 3, 2018)
Plaintiff’s Response to Motion for Leave by RCN et al. To File a Brief as Amici Curiae in Support of Neither Party (May 16, 2018)
Motion for Leave by Cinémoi North America to File Amicus Curiae Brief in Support of the United States of America (May 18, 2018)
Brief of Cinémoi North America as Amicus Curiae in Support of the United States of America (May 18, 2018)
Plaintiff’s Response to Cinémoi North America’s Motion for Leave to File Amicus Brief (May 21, 2018)
Defendants’ Opposition to Cinemoi North America’s Motion for Leave to File Amicus Brief (May 21, 2018)
Memorandum Opinion, United States v. AT&T Inc., No. 1:17-cv-02511 (D.D.C. June 12, 2018) (reported at 310 F. Supp. 3d 161)
Order (June 12, 2018)
Joint Motion to Modify Case Management Order (June 14, 2018)
Exhibit: Letter to DOJ from AT&T (June 14, 2018) (committing to hold Time Warner separate (June 14, 2018)
Proposed order (so ordered June 14, 2018)
Notice of Appeal (July 12, 2018)
Second Circuit
United States v. AT&T, Inc., No. 18-5214 (D.C. Cir. docketed July 13, 2018)
Docket sheet (downloaded Nov. 14, 2018)
Motion of the United States to Expedite Consideration of the Appeal (July 19, 2018)
Clerk's Order (July 19, 2018) (ordering proposed expedited schedule)
Statement of the United States of the Issue To Be Raised on Appeal (Aug. 6, 2018)
Final, Corrected Brief of Appellant United States of America Public Copy—Sealed Material Deleted (Oct. 18, 2018) (original filed Aug. 6, 2018)
[Final] Brief of Federal Communications Commission as Amicus Curiae in Support of Neither Party (Oct. 18, 2018)
[Final] Brief for 27 Antitrust Scholars as Amici Curiae in Support of Neither Party (Oct. 18, 2018)
Brief of Amici Curiae American Antitrust Institute, Consumers Union, and Public Knowledge in Support of Appellant (Aug. 13, 2018)
Corrected Proof Brief of Amici Professor William P. Rogerson and American Cable Association in Support of Appellant (Aug. 21, 2018)
Brief of Open Markets Institute as Amicus Curiae in Support of the Plaintiff-Appellant and Vacatur (Aug. 16, 2018)
Final Brief of AT&T Inc., DirecTV Group Holdings, LLC, and Time Warner Inc. (Oct. 18, 2018)
Brief Amici Curiae of 37 Economists, Antitrust Scholars, and Former Government Antitrust Officials in Support of Appellees and Supporting Affirmance (Sept. 26, 2018)
[Final] Brief of Amicus Curiae the Reporters Committee for Freedom of the Press in Support of Neither Party (Oct. 17, 2018)
Final, Corrected Reply Brief of Appellant United States of America Public Copy—Sealed Material Deleted (Oct. 18, 2018)
Oral argument (Dec. 6, 2018) (audio)
Judges: Rogers, Wilkins, Sentelle
Arguing: Michael Murray (DOJ), Eric F. Citron (amicus), Peter D. Keisler (AT&T/Time Warner) , Andrew J. Pincus (amicus)
Opinion, United States v. AT&T, Inc., No. 18-5214 (D.C. Cir. Feb. 26, 2019) (reported at 916 F.3d 1029)
Analysis
± Mark Cooper, Senior Fellow, Consumer Federation of America, Antitrust Practice, Economic Evidence and Market Reality Compel the Department of Justice to Oppose the AT&T-Time Warner Merger (Mar. 2018).
Jeffrey A. Eisenach & Timothy Watts, Effects of the AT&T-Time Warner Transaction on Competition in the Premium Channels Industry, White Paper for the U.S. Department of Justice (July 2017).
American Antitrust Institute, AAI Applauds Move to Block AT&T-Time Warner Merger, Sets Record Straight on Vertical Merger Enforcement (Dec. 6, 2017).
Steven C. Salop & Daniel P. Culley, Vertical Merger Enforcement Actions: 1994–2016 (June 30, 2017).
Commentary
± AT&T-Time Warner Trial, Wall St. J. (WSJ web page for trial)
± Trefis Team, Why AT&T Is Buying Time Warner, Forbes.com (Oct. 24, 2016)
± Keach Hagey, Brent Kendall & Drew FitzGerald, Regulators Seek Significant Asset Sales in AT&T Deal for Time Warner, WSJ.com (Nov. 8, 2017).
Mallinckrodt/Novartis AG
(FTC 2017)
± Questcor Pharmaceuticals, Inc., News Release, Questcor Pharmaceuticals Closes Transaction to Acquire International Rights to Synacthen® and Synacthen® Depot (June 23, 2014)
Note: On August 14, 2014, Mallinckrodt plc acquired Questor Pharmaceuticals for $5.8 billion. See Mallinckrodt plc, News Release, Mallinckrodt Completes Acquisition of Questcor Pharmaceuticals (Aug. 14, 2014). On July 27, 2015, Questor Pharmaceuticals was renamed Mallinckrodt ARD Inc.
Complaint for Injunctive and Other Equitable Relief, FTC v. Mallinckrodt ARD Inc., No. 1:17-cv-00120 (D.D.C. filed Jan. 18, 2017; redacted version filed Jan. 25, 2017) (FTC news release)
Docket sheet (downloaded Feb. 13, 2017)
Concurring Statement of Commissioner Maureen K. Ohlhausen (Jan. 18, 2017)
Mallinckrodt plc, News Release, Mallinckrodt and Federal Trade Commission Resolve Questcor Matter (Jan. 18, 2017)
Joint Motion for Entry of Stipulated Order for Permanent Injunction and Equitable Monetary Relief (Jan. 18, 2017)
[Proposed] Stipulated Order for Permanent Injunction and Equitable Monetary Relief (Jan. 18, 2017) (so ordered Jan. 30, 2017)
Related case
Complaint, Retrophin, Inc. v. Questcor Pharm., Inc., No. 8:14-cv-00026-JLS-JPR (C.D. Cal. filed Jan. 7, 2014)
Docket sheet (downloaded Mar. 14, 2017)
Order Denying Motion to Dismiss, Retrophin, Inc. v. Questcor Pharm., Inc., No. 8:14-cv-00026-JLS-JPR (C.D. Cal. 2014) (reported at 41 F. Supp. 3d 906)
Stipulation of Dismissal of Action with Prejudice (June 4, 2015)
NB: On June 4, 2015, pursuant to the terms of a Confidential Settlement Agreement and Release (the “Settlement Agreement”) the Company [Retrophin] and Questcor filed a Stipulation of Dismissal, dismissing the Company’s lawsuit against Questcor. Under the terms of the Settlement Agreement, Questcor paid the Company $15.5 million, recorded as “Litigation Settlement Gain” in the quarter ended June 30, 2015, and the Company and Questcor granted a mutual release of all claims against the other. ± Retrophin, Inc., Form 10-Q for the quarterly period ending June 30, 2015.
Commentary
± Andrew Pollack, Questcor Finds Profits, at $28,000 a Vial, NYTimes.com (Dec. 29, 2012)
± Andrew Pollack, Questcor Pays $135 Million to Acquire Rights to a Competitor’s Drug, NYTimes.com (June 14, 2014)
± Charles Ornstein, The Obscure Drug With a Growing Medicare Tab, ProPublica (Aug. 4, 2014)
± Cynthia Koons & Robert Langreth, Mallinckrodt's $35,000 Drug Is Back in the Spotlight, Bloomberg.com (Nov. 9, 2015)
± Tracy Staton, Mallinckrodt’s Acthar Drama Continues with $100M FTC Settlement, FiercePharma.com (Jan. 19, 2017)
± Gregory E. Heltzer & Melanie A. Hallas, THE LATEST: Losing Bidder for Pharmaceutical Triggers FTC Investigation, Fix, and $100 Million Fine in Non-HSR-Reportable Transaction, NationalLawReview.com (Mar. 14, 2017).
± Ramsi Woodcock, Ohio v. Amex, Supply Chain Fairness, and the Inadequacy of Antitrust’s Consumer Welfare Standard, ProMarket.org, July 2, 2018.
Mylan/Perrigo
(FTC 2015)
Mylan N.V., Press Release, Mylan to Launch Offer for Perrigo Directly to Perrigo Shareholders on Sept. 14 (Sept. 8, 2015)
Perrigo Company plc, Press Release, Perrigo Responds to Misleading Letter from Mylan Executive Chairman (Sept. 10, 2015)
Mylan N.V., Press Release, Mylan Commences Offer to Acquire Perrigo (Sept. 14, 2015)
Complaint, In re Mylan N.V., Dkt. No. C-4557 (F.T.C. issued Nov. 2, 2015) (FTC news release—issued Nov. 3, 2015)
Agreement Containing Consent Orders (Nov. 3, 2015)
Decision and Order(Nov. 3, 2015)
Order to Maintain Assets (Nov. 2, 2015)
Analysis of Agreement Containing Consent Orders to Aid Public Comment (Nov. 3, 2015)
Federal Register Notice (Nov. 10, 2015)
Decision and Order (Feb. 19, 2016) (FTC news release)
Perrigo Company plc, Press Release, Perrigo Shareholders Convincingly Reject Mylan's Tender Offer, Expressing Confidence in Perrigo's Long-Term Strategy (Nov. 13, 2015)
Steris/Synergy Health
(FTC 2015)
Medtronic/Covidien
(FTC 2014)
Medtronic, Inc. and Covidien, Press Release, Medtronic to Acquire Covidien for $42.9 Billion in Cash and Stock (June 15, 2014)
Complaint, In re Medtronic, Inc., Dkt. No. C-4503 (F.T.C. filed Jan. 13, 2015) (FTC news release—issued Nov. 26, 2015)
Agreement Containing Consent Orders (Nov. 26, 2014)
Decision and Order (Nov. 26, 2014)
Analysis of Agreement Containing Consent Orders to Aid Public Comment (Nov. 26, 2014)
Federal Register Notice (Dec. 5, 2014)
Decision and Order (Jan. 13, 2015)
Medtronic, Inc., Press Release, Medtronic Completes Acquisition of Covidien (Jan. 26, 2015)
The Spectranetics Corporation, Press Release, Spectranetics Completes Acquisition of Stellarex(TM) Drug Coated Balloon Assets From
Covidien (Jan. 27, 2015)
Akorn/VersaPharm
(FTC 2014)
± Akorn, Inc. Investor Presentation on the VersaPharm Acquisition (May 12, 2014)
Complaint, In re Akron, Inc., No. C-4479 (Aug. 1, 2014) (FTC news release—issued Aug. 4, 2014)
Agreement Containing Consent Orders (Aug. 1, 2014)
Decision and Order (Aug. 1, 2014)
Order to Maintain Assets (Aug. 1, 2014)
Analysis of Agreement Containing Consent Orders to Aid Public Comment (Aug. 1, 2014)
Federal Register Notice (Aug. 12, 2014)
Decision and Order (Sept. 16, 2014)
± FTC web page
Nielsen/Arbitron
(FTC 2013)
General Electric/Avio
(FTC 2013)
General Electric, Press Release, GE to Acquire Aviation Business of Avio S.p.A (Dec. 21, 2012)
Complaint, In re General Electric Co., No. C-4411 (FTC issued Aug. 27, 2013) (FTC News Release—issued July 19, 2013)
Agreement Containing Consent Orders (July 19, 2013)
Decision and Order (July 19, 2013)
Analysis of Agreement Containing Consent Orders to Aid Public Comment (July 19, 2013)
Federal Register Notice (July 26, 2014)
Decision and Order (Aug. 27, 2013)
Deutsche Böurse/NYSE Euronext
(DOJ 2011)
Complaint ¶¶ 29-30, United States v. Deutsche Bõrse AG, No. 1:11-cv-02280 (D.D.C. filed Dec. 22, 2011) (requiring the divestiture of Direct Edge in connection with the merger with NYSE Euronext, alleging among other this the elimination of Direct Edge as a potential competitor of NYSE in listing services for exchange-traded products) (DOJ news release)
Stipulation and Order (Dec. 22, 2011)
[Proposed] Final Judgment (Dec. 22, 2011)
Competitive Impact Statement (Dec. 22, 2011)
Plaintiff United States' Explanation of Consent Decree Procedures (Dec. 22, 2011)
Google/ITA
(DOJ 2011)
Complaint, United States v. Google Inc., No. 1:11-cv-00688 (D.D.C. filed Apr. 8, 2011) (news release)
Stipulation and [Proposed] Order (Apr. 8, 2011)
[Proposed] Final Judgment (Apr. 8, 2011)
Exhibit 1 to the [Proposed] Final Judgment (Redacted) (Apr. 8, 2011)
Competitive Impact Statement (Apr. 8, 2011)
Plaintiff United States' Explanation of Consent Decree Procedures (Apr. 8, 2011)
Stipulation and Order (Apr. 12, 2011)
United States' Motion to Enter Final Judgment and Supporting Memorandum of Points and Authorities (July 7, 2011)
Exhibit A: [Proposed] Final Judgment
Exhibit B: Certificate of Compliance with Provision of the Antitrust Procedures and Penalties Act
Final Judgment (Oct. 5, 2011)
Commentary
Michael D. Topper, Stanley Watt & Jingming "Marshall" Yan, Google-ITA: Creating a New Flight Search Competitor (2011), in The Antitrust Revolution 385 (John E. Kwoka, Jr. & Lawrence J. White eds., 6th ed. 2014).
± FairSearch.org, Google’s Flight Search: Today’s Example That “Trust Us” Is Not Enough (Nov. 17, 2011)
± FairSearch.org, Press Release, FairSearch.org Coalition Applauds Justice Department for Challenge to Google-ITA Deal (Apr. 8, 2011)
± Daniel A. Crane, Let’s Calm Down On The Google-ITA Deal, TechCrunch.com (Feb. 26, 2011)
Randy Stutz, American Antitrust Institute, An Examination of the Antitrust Issues Posed by Google’s Acquisition of ITA (Feb. 18, 2011)
± Brett Snyder, Google-ITA Rewards Orbitz and Undercuts Merger Opposition at the Same Time, CBS MoneyWatch.com (Feb. 8, 2011)
± FairSearch.org, Press Release, FairSearch.org Coalition Grows, New U.S. and International Travel Members Urge Justice Department to Challenge Google-ITA Deal (Dec. 13, 2010)
± FairSearch.org, Press Release, Online Travel and Technology Companies Launch FairSearch.org Coalition, Urge Justice Department to Challenge Google-ITA Deal (Oct. 26, 2010)
Google Inc., Facts about Google’s acquisition of ITA Software (web site)
Comcast/NBC Universal
(DOJ 2011)
Ticketmaster/Live Nation
(DOJ 2010)
Complaint, United States v. Ticketmaster, No. 1:10-cv-00139 (D.C.C. filed Jan. 25, 2010)
Exhibit A: Proposed Final Judgment
Exhibit B: United States' Explanation of Consent Decree Procedures
Exhibit C: Hold Separate Stipulation and [Proposed] Order
Competitive Impact Statement (Jan. 25, 2010)
Exhibit A - Letter of Agreement
U.S. Dep't of Justice, Press Release, Justice Department Requires Ticketmaster Entertainment Inc. to Make Significant Changes to its Merger with Live Nation Inc. (Jan. 25, 2010)
Remarks as Prepared for Delivery by Assistant Attorney General Christine Varney at Ticketmaster/Live Nation Pen-and-Pad Briefing (Jan. 25, 2010)
Analysis and commentary
John E. Kwoka, Jr., Rockonomics: The Ticketmaster-Live Nation Merger and the Rock Concert Business (2010), in The Antitrust Revolution 62 (John E. Kwoka, Jr. & Lawrence J. White eds. 2014).
± Alan J. Meese & Barak D. Richman, A Careful Examination of the Live Nation-Ticketmaster Merger (William & Mary Law School Research Paper No. 09-41, Nov. 25, 2009).
± James D. Hurwitz, Commentary: Ticketmaster–Live Nation (AAI white paper, Apr. 28, 2009).
TomTom/Tele Atlas
Nokia/NAVTEQ
(Eur. Comm'n 2008)
± Case No. COMP/M.4942, Nokia/ NAVTEQ, Commission Decision of 2 July 2008 (EC web site)
± Case No. COMP/M.4854, TomTom/Tele Atlas, Commission Decision of 14 May 2008 (EC web site)
± Carles Esteva Mosso, Michal Mottl, Raphaël De Coninck & Franck Dupont, Digital maps go vertical: TomTom/Tele Atlas and Nokia/NAVTEQ, Competition Pol'y Newsletter, No. 3, 2008.
Raphaël De Coninck, Chief Economist Team, DG COMP, Eur. Comm'n, TomTom/Tele Atlas, PowerPoint Presentation at the 2008 ACE Conference (Nov. 27, 2008).
± Charles River Associates, TomTom/Tele Atlas: European Non-Horizontal Merger Guidelines in practice (Aug. 2008).
± RBB Brief 32, Nokia/NAVTEQ – navigating the non-horizontal merger guidelines (Nov. 2009).
AOL/Time Warner (FTC 2000)
Complaint, In re America Online, Inc., No. C-3989 (F.T.C. filed Dec. 14, 2000) (± news release)
Agreement Containing Consent Orders (Dec. 14, 2000)
Decision and Order (Dec. 14, 2000)
Concurring Statement of Commissioner Thompson (Dec. 14, 2000)
Order to Hold Separate (Dec. 14, 2000)
Analysis of Proposed Consent Order to Aid Public Comment (Dec. 14, 2000)
Letter Appointing Monitor Trustee and Approving Monitor Trustee Agreement (Feb. 26, 2001)
Final Decision and Order (Apr. 18, 2001)
Concurring Statement of Commissioner Thompson (Dec. 14, 2000)
Merck/Medco
(FTC 1998)
Complaint, In re Merck & Co., No. C-3853 (Feb. 18, 1999) (FTC news release—issued Aug. 27, 1998)
In re Merck & Co., 127 F.T.C. 156 (Feb. 18, 1999)
Agreement Containing Consent Orders (Aug. 27, 1998)
Analysis of Agreement Containing Consent Orders to Aid Public Comment (Aug. 27, 1998)
Federal Register Notice (Sept. 1, 1998)
Decision and Order (Feb. 18, 1999)