Chapter VIII Civil Government Enforcement

• Pages: 131-154

CHAPTER VIII

CIVIL GOVERNMENT ENFORCEMENT

Section 5 of the FTC Act as an Antitrust Law

Practices That Violate the Sherman, Clayton, or Robinson-Patman

Acts

In January 2022, the FTC filed an administrative complaint and

authorized a preliminary injunction action challenging Lockheed Martin

Corporation’s proposed vertical acquisition of Aerojet Rocketdyne

Holdings Inc, which the Commission described as the last independent

U.S. supplier of missile propulsion systems.1 The parties abandoned the

transaction on February 13, 2022.2

In February 2022, the FTC challenged a proposed merger of Lifespan

and Care New England, which the agency alleged would reduce

competition in the state of Rhode Island and 19 nearby Massachusetts

communities for inpatient general acute care hospital services and

inpatient behavioral health services.3 The parties abandoned the

transaction on March 2, 2022.4

1. See Complaint, Lockheed Martin et al., No. 9405 (Jan. 26, 2022), available

at https://www.ftc.gov/system/files/documents/cases/d09405

lockheedaerojetp3complaintpublic.pdf.

2. See Press Release, Fed. Trade Comm ’n, Statement Regarding Termination

of Lockheed Martin Corporation’s Attempted Acquisition of Aerojet

Rocketdyne Holdings Inc. (Feb. 15, 2022) available at

https://www.ftc.gov/news-events/news/press-releases /2022/02/statement-

regarding-termination-lockheed-martin-corporations-attempted-

acquisition-aerojet.

3. See Complaint, Lifespan Corporation, No. 9406 (Feb. 17, 2022), available

at https://www.ftc.gov/system/files/ftc_gov/pdf/d_9406_lifespan-

cne_p3_complaint_public_redacted.pdf.

4. See Press Release, Fed. Trade Comm ’n, Statement Regarding Termination

of Attempted Merger of Rhode Island’s Two Largest Healthcare Providers

(Mar. 2, 2022), available at https://www.ftc.gov/news-events/news/press-

releases/2022/03/statement-regarding-termination-attempted-merger-

rhode-islands-two-largest-healthcare-providers.

132 2022 Annual Review of Antitrust Law Development

In February 2022, an administrative law judge dismissed a complaint

issued by the FTC against tobacco company Altria Group, Inc. and

electronic cigarette maker JUUL Labs, Inc.5 The FTC had challenged a

series of agreements between the parties, including the acquisition by

Altria Group of a 35% stake in JUUL.6 The FTC alleged that, through these

actions, Altria withdrew from competition in the electronic cigarette

market and instead collaborated with JUUL in violation of Section 1 of the

Sherman Act, Section 5 of the FTC Act, and Section 7 of the Clayton Act.7

The ALJ found the FTC’s allegations “highly circumstantial,” and

accepted Altria’s explanations for withdrawing from the market, including

that its e-cigarette product had been losing money for a significant period

of time.8 FTC staff appealed the decision, and the full Commission held

oral argument in September 2022.9

In March 2022, the Third Circuit in FTC v. Hackensack Meridian

Health, Inc.10 affirmed the district court’s decision to grant a preliminary

injunction against Hackensack Meridian Health, Inc.’s proposed

acquisition of Englewood Healthcare Foundation. The Third Circuit found

that the district court did not err in holding that the “hospitals failed to

rebut the prima facie case that the merger would substantially lessen

competition” because of the high HHI numbers presented by the FTC.11

The FTC’s December 2020 administrative complaint alleged that the

merger would eliminate close competition between Hackensack Meridian

and Englewood, and that the merged healthcare system would control

5. See Initial Decision, Altria Group, Inc. & JUUL Labs, Inc., No. 9393 (Feb.

23, 2022) [hereinafter Initial Decision], available at

https://www.ftc.gov/system/files/ftc_gov/pdf/d09393altriainitialdecisionp

ublic.pdf.

6. See Complaint, Altria Group, Inc. & JUUL Labs, Inc., No. 9393 (Apr. 1,

2020), available at https://www.ftc.gov/system/files/documents/cases/

d09393_administrative_part_iii_complaint-public_version.pdf.

7. See id. at 1-4.

8. See Initial Decision at 77.

9. See Order Rescheduling Oral Argument, Altria Group, Inc. & JUUL Labs,

Inc., No. 9393 (June 30, 2022), available at https://www.ftc.gov/

system/files/ftc_gov/pdf/D09393%20Commission%20Order%20Resched

uling%20Oral%20Argument%20%28Public%29%28Signed%29.pdf.

10. 30 F.4th 160 (3d Cir. 2022).

11. Id. at 164.