Lessons From Three Antitrust Agency Losses In Three Merger Trials

Key Takeaways

• The antitrust agencies have lost three litigated merger challenges in less than one month. The DOJ Antitrust Division lost challenges to UnitedHealth/Change and U.S. Sugar/Imperial Sugar while the FTC lost its challenge to Illumina/Grail, although the antitrust agencies are appealing the latter two cases.
• In each of these cases, the merging parties held the antitrust agencies' feet to the fire by litigating merger challenges in court. In a world where antitrust agency leaders have promised aggressive enforcement and have advanced new legal theories of harm, litigating in front of an impartial judge may be the best way for merging parties to get their deal approved. The varying political backgrounds of the three judges underscores this point: one is a Republican Trump appointee, one is a Democrat Trump appointee, and the third is not aligned with a political party but was appointed during the Clinton administration.