Civil Government Enforcement

• Date: 02 June 2025

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CHAPTER VIII

CIVIL GOVERNMENT ENFORCEMENT

2024 was a robust year for antitrust enforcement from the Federal

Trade Commission and the Antitrust Division, with a landmark decision

in one of the Division’s monopolization cases against Google (covered in

Chapter 2), reinvigorated Section 2 enforcement with cases involving

debit card networks, algorithmic pricing, live entertainment and

smartphones, rulemaking on noncompete agreements, the withdrawal of

longstanding bank merger and competitor collaboration guidelines, and

merger challenges involving hospitals, home health care, luxury handbags,

airlines, mattresses and supermarkets.

A. The Federal Trade Commission

2. Jurisdictional Elements under the FTC Act

d. The FTC Act’s Additional Limitations on Jurisdiction

In August 2024, supermarket chain Kroger filed suit against the FTC

and its five Commissioners, challenging the constitutionality of the

administrative proceedings adjudicating the proposed supermarket merger

of Kroger and Albertsons Companies. Kroger claimed that the FTC’s

administrative proceeding violates Article II of the U.S. Constitution by

insulating the administrative law judge from removal and Article III by

using the Executive Branch instead of the Judicial Branch to adjudicate

Kroger’s private contract rights. In January 2025, Kroger voluntarily

dismissed the case given that the FTC had dropped its administrative case

against the transaction.

Kroger and the FTC filed a joint stipulation of dismissal in Ohio

federal court, citing the commission's order in the underlying

administrative case dismissing that proceeding.

3. Section 5 of the FTC Act as an Antitrust Law

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

Acts

In January 2024, Amazon announced the termination of its proposed

acquisition of consumer robot company iRobot, maker of the Roomba

128 2024 Annual Review of Antitrust Developments

robot vacuum and other smart home devices.1 In response to the

announcement, the FTC issued a statement indicating that its investigation

had “focused on Amazon’s ability and incentive to favor its own products

and disfavor rivals’, and associated effects on innovation, entry barriers,

and consumer privacy” and “revealed significant concerns about the

transaction’s potential competitive effects.”2

In January 2024, the U.S. District Court for the Middle District of

North Carolina denied a motion by two manufacturers of crop protection

products to dismiss a suit by the FTC and twelve states challenging loyalty

discount programs allegedly used to exclude generic competition by

requiring distributors to source less than 15 percent of products sold from

generics to qualify for rebates.3 The court held that the FTC had plausibly

alleged a relevant product market and antitrust injury, and denied the

manufacturers’ challenge to the FTC’s constitutionality.

In February 2024, the FTC and nine states filed an administrative

complaint and authorized a lawsuit in the U.S. District Court for the

District of Oregon to block the proposed $24.6 billion supermarket merger

of Kroger Company and Albertsons Companies, Inc.4 The complaint

alleged that the proposed acquisition would substantially lessen

competition in violation of Section 7 of the Clayton Act and Section 5 of

the FTC Act.5 In December 2024, the court preliminarily enjoined the

merger, finding that under the 2023 Merger Guidelines, the transaction

would substantially lessen competition in the relevant product markets of

1. See Press Release, Amazon, Amazon and iRobot Agree to Terminate

Pending Acquisition (Jan. 29, 2024), available at

https://press.aboutamazon.com/2024/1/amazon-and-irobot-agree-to-

terminate-pending-acquisition.

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

Termination of Amazon’s Proposed Acquisition of iRobot (Jan. 31, 2024),

available at https://www.ftc.gov/news-events/news/press-

releases/2024/01/statement-regarding-termination-amazons-proposed-

acquisition-irobot.

3. See FTC v. Syngenta Crop Prot. AG, 711 F. Supp. 3d 545, 556 (M.D.N.C.

2024).

4. See Press Release, Fed. Trad. Comm’n, FTC Challenges Kroger’s

Acquisition of Albertsons (Feb. 26, 2024), available at

https://www.ftc.gov/news-events/news/press-releases/2024/02/ftc-

challenges-krogers-acquisition-albertsons.

5. See Complaint at 6, In re: Kroger Co. & Albertsons Companies, Inc., No.

D-9428 (FTC Feb. 26, 2024), available at

https://www.ftc.gov/system/files/ftc_gov/pdf/d9428_2310004krogeralbert

sonsp3complaintpublic.pdf.

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supermarket and large format stores because of undue market

concentration and the loss of head-to-head competition between Kroger

and Albertsons.6 Additionally, the court found that the defendants’ rebuttal

evidence of entry and expansion, efficiencies, and its proposed divestiture

package was insufficient to overcome the FTC’s prima facie case. Finally,

the court found a relevant market for union grocery labor but held that the

FTC did not establish a prima facie case that the merger would

substantially lessen competition in that market. Following the decision,

Albertsons terminated the merger agreement and the FTC dismissed its

administrative proceeding.7

In February 2024, the FTC ordered dismissal of an administrative

complaint against IQVIA Holdings Inc. and Propel Media, Inc., alleging

violations of Section 5 of the FTC Act and Section 7 of the Clayton Act

for substantially lessening competition in the market for programmatic

advertising targeted at healthcare professionals.8 After the U.S. District

Court for the Southern District of New York enjoined their merger, the

parties stated they would not appeal, and they terminated the proposed

transaction.9

In April 2024, the FTC filed an administrative complaint and lawsuit

in the U.S. District Court for the Southern District of New York to block

the $8.5 billion merger of fashion firms Tapestry and Capri in violation of

6. See FTC v. Kroger Co., No. 3:24-cv-347, 2024 WL 5053016 (D. Or. Dec.

10, 2024).

7. See Press Release, Albertsons Cos., Inc., Albertsons Terminates Merger

Agreement (Dec. 11, 2024),

https://www.albertsonscompanies.com/newsroom/press-releases/news-

details/2024/Albertsons-Terminates-Merger-Agreement/default.aspx;

Statement of Chain Lina M. Khan, Fed. Trade Comm’n (Jan. 2, 2025),

available at https://www.ftc.gov/system/files/ftc_gov/pdf/2025.01.02-

statement-of-chair-lina-m.-khan-in-the-matter-of-the-kroger-company-

and-albertsons-companies-inc.-final.pdf.

8. See FTC v. IQVIA Holdings Inc., 710 F. Supp. 3d 329, 340 (S.D.N.Y.

2024); Complaint, In re: IQVIA Holdings Inc., No. 9416 (FTC July 17,

2023), available at

https://www.ftc.gov/system/files/ftc_gov/pdf/d09416_iqvia-

pmi_administrative_part_3_complaint_-_public.pdf.

9. See Order Dismissing Complaint, Fed. Trade Comm’n, In re: IQVIA

Holdings Inc., No. 9416 (FTC Feb. 2, 2024), available at

https://www.ftc.gov/system/files/ftc_gov/pdf/d9416_20240202_order_dis

missing_complaint_unsigned.pdf.