Volume 111

Prior Bad Acts and Merger Review

by Michael A. Carrier & Gwendolyn J. Lindsay Cooley

Consider a merger of two firms in the pharmaceutical industry. Each has previously engaged in antitrust violations. In considering whether to allow the merger, how much weight should the antitrust agencies give to these prior bad acts? How important should this evidence be to courts? These critical questions have not received sufficient attention. 

In the 2010 Horizontal Merger Guidelines (the Guidelines), the federal antitrust agencies—the U.S. Department of Justice Antitrust Division (Antitrust Division) and Federal Trade Commission (FTC)—address collusion, one of the two main types of anticompetitive behavior underlying merger challenges. Footnote #1 content: See DOJ & FTC, HORIZONTAL MERGER GUIDELINES § 7.2, at 25 (2010) [hereinafter MERGER GUIDELINES], https://www.justice.gov/sites/default/files/atr/legacy/2010/08/19/hmg-2010.pdf [https://perma.cc/R4N2-H6RP].    The rationale is simple: the merging parties’ previous collusion is a strong indicator that they may engage in similar behavior in the future. We support the Guidelines’ attention on this conduct but believe that merger enforcement can be improved in this area. 

Since the Guidelines’ publication, the treatment of evidence of past coordinated conduct has not been consistent. In some mergers, the agencies have emphasized this factor. For example, in United States v. Dairy Farmers of America, Inc., the Antitrust Division noted in its complaint that “[t]here is a history of anticompetitive coordination, including price-fixing, bid-rigging, and customer allocation in fluid milk markets in the United States.” Footnote #2 content: Complaint at ¶ 28, United States v. Dairy Farmers of Am., Inc., 2020 WL 8370839 (N.D. Ill. 2020) (No. 1:20-cv-2658). AAG Cooley was counsel for the State of Wisconsin in this case. See also FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34, 65 (D.D.C. 1998) (indicating that the FTC presented evidence of tacit coordination at trial).    But in other mergers, prior collusion is neglected. For example, the FTC’s complaints challenging the Pfizer/Mylan Footnote #3 content: See Complaint at 1, In re Pfizer, No. C-4727 (F.T.C. Oct. 13, 2020). But see Public Statement, FTC, Statement of Commissioner Rohit Chopra Joined by Commissioner Rebecca Kelly Slaughter, In the Matter of Pfizer Inc. / Mylan N.V. (Oct. 30, 2020) [hereinafter Chopra Pfizer/Mylan Statement], https://www.ftc.gov/system/files/documents/public_statements/1582382/191_0182_pfizer-mylan_-_dissenting_statement_of_commrs_chopra_and_slaughter_1.pdf [https://perma.cc/H763-47KD].    and Teva/Allergan Footnote #4 content: See Complaint, Teva Pharm. Indus. Ltd., No. C-4589 (F.T.C. July 26, 2016); see also Bill Wichert, Allergan Strikes $130M Deal over Drug Price-Fixing Claims, LAW360 (July 12, 2021, 4:18 PM), https://www.law360.com/articles/1402298/allergan-strikes-130m-deal-over-drug-price-fixing-claims; infra notes 58–59 and accompanying text (referencing generic price-fixing litigation in which Teva is defendant).    mergers failed to address this conduct. In many cases, defense lawyers have responded to this inconsistency by not preparing their clients for potential scrutiny of prior antitrust violations. Footnote #5 content: Conversations between Gwendolyn J. Lindsay Cooley, National Association of Attorneys General Multistate Antitrust Task Force Chair and Wisconsin Assistant Attorney General for Antitrust and unnamed state and federal enforcers (Sept. 7, 2022).    Conversations with state and federal antitrust enforcers have revealed that the merging parties are often surprised when confronted with their prior collusion, as if they did not expect this to be part of the merger inquiry. Footnote #6 content: Id.  

The second main type of prior conduct, unilateral behavior, presents even more uncertainty. Nowhere do the Guidelines discuss the relevance of unilateral conduct in the form of a merging party’s prior bad acts. We contend that this prior conduct is particularly relevant when: (1) the markets are similar, (2) there is a connection between the prior bad acts and the markets covered by the merger, and (3) there is sufficient proof of the prior bad acts. Footnote #7 content: The closer connection between collusion pre- and post-merger leads us to rely on the Guidelines’ conclusion that markets are “conducive to coordinated interaction” when firms with a “substantial share” of the market have previously engaged in collusion in the same market or in separate geographic or product markets with comparable characteristics. See MERGER GUIDELINES, supra note 1, at 25; infra note 94 and accompanying text.  And if both parties to a merger transaction have engaged in this conduct, it is even more likely that they will do so again in the future as part of a new, larger company. 

In evaluating mergers, courts have struggled to assess future harms to competition. In the merger between Sprint and T-Mobile, for example, the court worried that the “[a]djudication of antitrust disputes virtually turns the judge into a fortuneteller” and that courts must “resort to their own tried and tested version of peering into a crystal ball.” Footnote #8 content: New York v. Deutsche Telekom AG, 439 F. Supp. 3d 179, 186, 188 (S.D.N.Y. 2020).  Given the challenges posed by predicting the future in merger challenges, analyzing prior bad acts—for not only coordinated but also unilateral conduct—may provide useful insights that can assist courts, especially in close cases. 

In this Essay, we explain why the agencies and courts should carefully consider previous anticompetitive conduct. We describe how such analysis is consistent with the policies underlying antitrust law first by expanding on the 2010 Guidelines’ use of collusive conduct. Footnote #9 content: See MERGER GUIDELINES, supra note 1. We recommend that the agencies discuss bad acts in relation to unilateral conduct in the new version of the guidelines currently being considered. See DOJ & FTC, REQUEST FOR INFORMATION ON MERGER ENFORCEMENT (2022), https://downloads.regulations.gov/FTC-2022-0003-0001/content.pdf [https://perma.cc/8CE9-XSJC].    Second, we argue that prior unilateral conduct should also be considered in merger review. We supplement our discussion of collusive and unilateral behavior by offering case studies involving mergers for which there was strong evidence that each of the companies had previously engaged in this conduct. We conclude by explaining why, in mergers in which prior bad acts counsel agency action, the array of potential relief should include not just a lawsuit to block the merger but also behavioral remedies. 

Our focus in this Essay is the pharmaceutical industry, where examples of collusion and unilateral anticompetitive conduct are compelling and where criticism of inadequate enforcement has been particularly robust. Footnote #10 content: See infra notes 22–23 and accompanying text.  But the analysis we offer could apply across all industries, as our arguments about prior bad acts are not limited to this industry’s characteristics. 

Continue reading Prior Bad Acts and Merger Review.