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January 16, 2025

Antitrust Agency Insights: Developments at the U.S. Antitrust Enforcement Agencies — Fourth Quarter 2024

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Letter From the Editors

Taking Stock of a New Administration

On January 20, 2025, a second Trump administration may mark a shift from some of the more aggressive antitrust enforcement policies pursued by the U.S. Federal Trade Commission (FTC or Commission) and the U.S. Department of Justice’s Antitrust Division (DOJ) under the Biden administration. In particular, the change in administration calls into question the agencies’ future priorities with respect to conduct relating to pricing strategies, including price discrimination and the use of artificial intelligence-based “surveillance pricing.”

Biden Administration’s Pricing-Related Investigations and Enforcement

Much of President Biden’s term has occurred in an inflationary environment so it is no surprise that pricing issues have been a focus of the antitrust and consumer protection agency leadership during his administration. Rather than solely focusing on high prices, however, the FTC and DOJ have approached enforcement often through the lens of unfair or discriminatory practices that they view as distorting competitive processes. These efforts have ranged from policy statements to studies to enforcement action.

For example, during the Biden administration, the FTC made statements suggesting that targeted price discrimination practices may be “unfair methods of competition” prohibited by FTC Act Section 5. Specifically, the FTC listed price discrimination in its November 2022 policy statement announcing the agency’s intention to apply Section 5 to “conduct that violates the spirit of the antitrust laws … but that may or may not be covered by the literal language of the antitrust laws or that may or may not fall into a ‘gap’ in those laws.”1

Further, on July 23, 2024, the FTC issued 6(b) orders to obtain information from eight companies that advertise their use of AI and other technologies that rely on historical and real-time customer information to target prices for individual consumers.2 These orders sought “information regarding four major areas of interest, including (1) the types of surveillance products and services being offered and the technical implications and intended uses of this technology, (2) the data sources, collection methods, and platforms and methods used to collect this consumer data, (3) information about customers’ use of surveillance pricing and their plans for the use of this information, and (4) information regarding the impact of these practices on the prices consumers pay.”3 In a post to its Technology Blog published on the day the 6(b) orders were issued, the FTC Staff expanded on the distinction between the targeted pricing that sellers have employed “[f]or thousands of years, from ancient Mesopotamian markets to the modern-day yard sale” using basic information that consumers often opted into, and the “new frontier of surveillance pricing” in which consumers may not even be aware of the data collected by several of their devices that “can be used to charge them more money for products and services.”4 Notably, in her separately issued concurring statement, Commissioner Melissa Holyoak expressed her hesitation with the term “surveillance pricing” which through “negative connotations may suggest that personalized pricing is necessarily a nefarious practice.”5

More recently, the DOJ quietly withdrew a 1977 report saying the DOJ would no longer enforce the Robinson-Patman Act. The report had concluded that the Robinson-Patman Act “is ineffective when evaluated both in terms of its narrow, protectionist objectives, and in terms of its benefits to the welfare of society as a whole.”6 The report now bears a header that it is “out of date and is retained for historical purposes. Although it remains accessible on the Antitrust Division website, the report no longer reflects contemporary economics or market realities and should not be relied on for current matters related to the Robinson-Patman Act.”7

The Biden administration focus on price discrimination issues came to a head on December 12, 2024, when the FTC filed its first Robinson-Patman Act suit in almost 25 years, suing Southern Glazer’s Wine and Spirits, LLC in the U.S. District Court for the Central District of California, alleging that the company has violated the Robinson-Patman Act by selling wine and spirits to independent “mom and pop” businesses at prices significantly higher than those charged to larger chains. The action elicited lengthy dissents from Republican Commissioners Ferguson and Holyoak.8 Although Commissioner Ferguson stated that “treating the Robinson-Patman Act as a nullity for decades offended the separation of powers,” he dissented noting that “the Commission ought not to revive enforcement of the Act merely for the sake of reviving enforcement…. We ought to enforce the Act where it will serve the broad public interest, and bring only those cases we are likely to win. This case checks neither box.”9 Commissioner Ferguson suggested that any enforcement should focus on buyers with market power and that there is insufficient evidence that the buyers in this case had such market power.”10 Commissioner Holyoak’s dissent states that the complaint improperly fails to allege evidence of competitive injury whether there was actual competitive injury and notes that price discrimination may have a procompetitive effect.11 Commissioner Holyoke also argues that the complaint fails to meet the “in commerce” test and that Southern Glazer’s has cognizable defenses under both the cost justification defense and the meeting competition defense.12

Looking Ahead to the Trump Administration’s Projected Pricing Enforcement and Investigations

It remains to be seen what further action the FTC will take under the Trump administration in the context of the 6(b) study on surveillance pricing and with respect to personalized pricing more generally. Although both Commissioners Ferguson and Holyoak dissented from the Southern Glazer’s complaint, and both strongly questioned whether the case was an appropriate use of the FTC’s resources, they did not rule out the possibility of Robinson-Patman enforcement in circumstances that serve the public interest. Both Commissioner Ferguson and Commissioner nominee Mark Meador have taken issue with the FTC’s decades-long pause in Robinson-Patman enforcement. Indeed, Meador, has previously stated that “conservatives and others who believe in our constitutional order and the rule of law should be deeply troubled by the suggestion that federal law enforcers can decide not to enforce a law simply because they disagree with the policy or outcomes it advances. That policy prerogative is reserved to Congress alone under Article I of the Constitution.”13 Until it becomes more apparent how the Trump administration prioritizes enforcement related to pricing, companies should continue to operate under the expectation that the FTC may not abandon the recent renewed focus on pricing conduct.
 
* * *

FTC Cases and Proceedings

  • FTC Wins Preliminary Injunction for Tapestry-Capri Merger and the Parties Abandon the Deal. On October 24, 2024, the U.S. District Court for the Southern District of New York granted the FTC’s request for a preliminary injunction against a transaction that would have brought six handbag brands under one roof: Tapestry’s Coach, Kate Spade, and Stuart Weitzman; and Capri’s Versace, Jimmy Choo, and Michael Kors. The court adopted the FTC’s relevant market definition, finding “accessible luxury” handbags distinguishable from “mass-market” and “true luxury” bags. Despite the defendants’ challenges to this definition, the court applied the Brown Shoe factors to find that “accessible luxury” handbags represent a distinct market of bags constructed with genuine leather, manufactured in Southeast Asian production facilities, and sold for $100 to $1,000. On November 14, 2024, Tapestry, Inc. announced that it was terminating the $8.5 billion deal and on December 4, 2024, the FTC dismissed its administrative complaint. FTC Chair Lina Khan, joined by Commissioners Slaughter and Bedoya, issued a statement highlighting that the district court’s opinion noted that markets can be defined either through qualitative evidence or quantitative evidence “[b]ut given the exorbitant costs of retaining economic experts, preserving the ability for plaintiffs to show a Section 7 violation primarily through qualitative analysis will better ensure that market participants and state attorneys general can vindicate their rights under the statute.”
  • After FTC Comments to Indiana Department of Health, Union Health Delays Acquisition of Terre Haute Regional Hospital. On November 25, 2024, Union Health said the company had withdrawn the application for state approval of its proposed merger with Terre Haute Regional Hospital, but that it would continue working on the plan. On September 5, 2024, the FTC staff had submitted a comment urging the Indiana Department of Health to deny an application to allow the combination. The FTC stated that the deal “would likely impose higher costs and could lead to worse healthcare outcomes for Indiana patients, as well as lower wage growth for hospital workers,” because “the merged entity would have a combined share of nearly 74% of all commercially insured inpatient hospital services” in Vigo County, Indiana.
  • FTC Orders Building Service Contractor to End No-Hire Agreement. On December 4, 2024, the FTC filed a complaint and consent decree against building service contractor Guardian Service Industries, Inc., challenging provisions in Guardian’s customer service contracts that prevent building service contractors from hiring Guardian’s employees. The FTC’s complaint alleges that these no-hire agreements limit Guardian employees, including concierge personnel, custodians, and maintenance technicians, from negotiating for higher wages, better benefits, and improved working conditions. Under the proposed consent order, Guardian must stop enforcing no-hire agreements, inform customers and employees that these agreements are no longer in effect, take steps to void all existing no-hire agreements, and not require any person who is party to an existing no-hire agreement to pay any fees or penalties.
  • FTC Modifies 2012 Final Order for Pharmacy Cooperative. On December 9, 2024, following a public comment period, the FTC approved a petition by Cooperativa De Farmacias Puertorriqueñas, a Puerto Rican cooperative of independent pharmacy owners, to modify the FTC’s 2012 order that prohibited the cooperative from entering into or facilitating certain agreements or information exchanges with pharmacies. The 2012 order settled antitrust charges alleging that the cooperative had harmed competition by negotiating, entering into, and implementing agreements among its member pharmacies to fix prices with insurers and pharmacy benefit managers (PBMs). Under the modified order, the FTC will now permit the cooperative to jointly negotiate with insurers or PBMs on behalf of pharmacies.
  • FTC Sues Largest U.S. Wine Distributor Under Robinson-Patman Act. On December 12, 2024, the FTC sued Southern Glazer’s Wine and Spirits, LLC in the U.S. District Court for the Central District of California, alleging that the company has violated the Robinson-Patman Act by selling wine and spirits to independent “mom and pop” businesses at prices significantly higher than what the company charges large chains. The complaint alleges that since at least 2018, Southern Glazer’s has favored large chain purchasers of wine and spirits over neighborhood grocery stores and local convenience stores by offering quantity discounts and rebates to large buyers that are inaccessible to small competitors and are not justified by differences in the cost of distributing products to different retailers. Commissioners Ferguson and Holyoke issued dissenting statements.

DOJ Cases and Proceedings

  • DOJ Announces Resignation of Board Directors Due to Section 8 Concerns. On December 18, 2024, the DOJ announced that two directors of Epic Games Inc. who had been appointed by Tencent Holdings Ltd. had resigned to resolve DOJ concerns that their presence on the Epic Games board created an interlock in violation of Section 8 of the Clayton Act. According to the DOJ, Tencent has a minority interest in Epic Games and is the parent company to an Epic Games competitor, Riot Games, Inc. DOJ also indicated that Tencent amended its shareholder agreement with Epic Games to eliminate a unilateral right to appoint directors or observers to the Epic Games board in the future.
  • DOJ Secures Ninth Guilty Plea in Ongoing Asphalt Industry Collusion Investigation. On October 2, 2024, the DOJ announced that a senior executive of a Michigan asphalt paving company pleaded guilty for his role in two separate conspiracies to rig bids for asphalt paving services contracts. David A. Coppola, Vice-President and part-owner of Al’s Asphalt Paving Company, Inc., entered a guilty plea in the U.S. District Court for the Eastern District of Michigan to participating in two conspiracies to rig bids for asphalt paving services contracts. According to court documents, Coppola conspired with Asphalt Specialists LLC and its employees from March 2013 through November 2018 and conspired with F. Allied Construction Company Inc. and its employees from June 2013 through June 2019. Coppola’s employer (Al’s Asphalt Paving Company, Inc.) and its president previously pleaded guilty in January 2024, and, in 2023, Allied and two of its executives pleaded guilty, as did ASI and two of its former executives.
  • Four Executives and Corporation Sentenced for Bid-Rigging Conspiracy in Georgia Concrete Industry. On October 17, 2024, the DOJ announced that Gregory Hall Melton and John David Melton were sentenced to 41 months in prison with three years of supervised release and a $50,000 fine and 26 months in prison with three years of supervised release and a $10,000 fine, respectively, for conspiring to fix prices, rig bids, and allocate jobs for the sale of ready-mix concrete. They were convicted in July 2024 by a jury in the U.S. District Court for the Southern District of Georgia.
  • Six Defendants Charged in DOJ’s Ongoing IT Contracting Investigation. On October 9, 2024 and October 16, 2024, a federal grand jury in Baltimore returned indictments against two defendants: Victor Marquez, charged with wire fraud conspiracy, wire fraud, and major fraud against the United States for rigging bids and inflating the amount of money obtained from valuable IT contracts, and Breal Madison Jr., charged with conspiracy, bribery of a public official, mail fraud, and money laundering for orchestrating a years-long scheme to defraud his employer and the United States out of over $7 million in connection with the sale of IT products to various government agencies. Four other defendants, three employees of Marquez’s companies and one of Madison Jr.’s supervisors, were also charged. These are the first charges in DOJ’s ongoing investigation into IT manufacturers, distributors, and resellers who sell products and services to government purchasers, which has also relied on Procurement Collusion Strike Force (PCSF) efforts.
  • First Circuit Affirms Ruling in Favor of DOJ’s Challenge To Stop American Airlines-Jet Blue Alliance. On November 8, 2024, the U.S. Court of Appeals for the First Circuit affirmed the U.S. District Court for the District of Massachusetts’ May 2023 ruling in favor of the DOJ and the Attorneys General of six states and the District of Columbia in their civil antitrust lawsuit to stop the Northeast Alliance between American Airlines and JetBlue. The Northeast Alliance was a series of agreements between American Airlines and JetBlue through which the two airlines consolidated their operations in Boston and New York City.
  • DOJ Sues to Block UnitedHealth Acquisition of Amedisys. On November 12, 2024, the DOJ, together with the Attorneys General of Maryland, Illinois, New Jersey, and New York, filed a civil antitrust lawsuit today to block UnitedHealth Group Incorporated’s (UnitedHealth) proposed $3.3 billion acquisition of rival home health and hospice services provider Amedisys Inc. (Amedisys). The complaint filed in the District of Maryland alleges that the transaction would harm competition in the provision of home health hospice services and in a separate market for home health and hospice labor in which the defendants compete to hire nurses.
  • Supreme Court Denies Review of Fourth Circuit’s Reversal of DOJ’s Criminal Bid-Rigging Conviction. On November 12, 2024, the U.S. Supreme Court denied the DOJ’s petition for writ of certiorari appealing the Fourth Circuit’s decision to reverse the DOJ’s criminal conviction of a former executive of an aluminum products manufacturer for failure to state a per se antitrust offense under the Sherman Act. In its December 2023 decision in United States v. Brewbaker, the Fourth Circuit held that the trial court had erred in applying the per se rule without considering that the alleged scheme took place within the context of a “dual distribution” relationship among competing bidders, who also maintained a supplier relationship. After the Fourth Circuit denied DOJ’s petition for an en banc rehearing, DOJ had sought Supreme Court review of the Fourth Circuit’s decision. Defendants had also filed a conditional cross petition for review asking the Supreme Court to hold the per se rule altogether unconstitutional. The Supreme Court denied both parties’ requests for review.

Joint FTC and DOJ Policy

  • FTC and DOJ Participate in Summit With G7 Enforcement Partners on Artificial Intelligence Competition Challenges. At the G7 Competition and Policymakers’ Summit held in Rome on October 3-4, 2024, the FTC and DOJ discussed ways to ensure competition in artificial intelligence-related technologies and products with international competition authorities. At the conclusion of the summit, FTC Chair Lina Khan and other representatives of the G7 competition authorities issued a communiqué highlighting potential competition concerns in AI-related markets and identifying guiding principles to ensure fair competition across AI markets.
  • FTC and DOJ Withdraw Collaboration Guidelines. On December 11, 2024, the FTC and the DOJ’s Antitrust Division announced that they had withdrawn the Antitrust Guidelines for Collaborations Among Competitors issued in April 2000. In the joint withdrawal statement, the agencies stated that the collaboration guidelines relied on outdated jurisprudence, policy statements, and analytical methods such that they no longer provide reliable guidance to the public about how enforcers assess the legality of collaborations involving competitors. The agencies also stated that the guidelines fail to address the competitive implications of modern business combinations and rapidly changing technologies, such as artificial intelligence, algorithmic pricing models, vertical integration, and roll ups. The FTC Commissioners’ vote to withdraw the guidelines was 3-2, with the Republican Commissioners Ferguson and Holyoak each issuing separate dissenting statements criticizing the timing of the withdrawal and the lack of replacement guidelines.

FTC Policy

  • FTC Director of Policy Planning Issues Statement After Federal Circuit Decision in Orange Book Case. On December 20, 2024, the FTC’s Director of Policy Planning issued a statement following the Federal Circuit’s decision to affirm a lower court order requiring Teva to de-list certain asthma inhaler patents following a challenge by Amneal.
  • FTC Hosts Predatory Pricing Workshop. On December 18, 2024, the FTC hosted a virtual public workshop to discuss predatory pricing caselaw and the implications for modern economic realities.

DOJ Policy

  • DOJ’s Procurement Collusion Strike Force Commemorates Fifth Anniversary. On November 21, 2024, the DOJ’s Antitrust Division and PCSF commemorated the PCSF’s fifth anniversary in Washington with a celebration involving law enforcement partners and key stakeholders from among the PSCF’s 12 national law enforcement partners and 25 U.S. Attorneys’ Offices. Assistant Attorney General Jonathan Kanter gave remarks at the anniversary event regarding the growing importance of criminal antitrust enforcement. The event also featured several panels of PCSF partner agency representatives discussing the mitigation tools they have deployed to address the threats their agencies are facing.

Inter-Agency Initiatives

  • FTC, DOJ, and CFPB Warn Consumers About Potential Scams and Price Gouging in the Wake of Hurricanes and Other Natural Disasters. On October 9, 2024, the FTC, along with the DOJ and Consumer Financial Protection Bureau (CFPB), warned consumers about those looking to take advantage of natural disasters by engaging in potential fraud or price gouging.
  • DOJ and DOT Launch Broad Public Inquiry Into the State of Competition in Air Travel. On October 24, 2024, the DOJ’s Antitrust Division and the Department of Transportation (DOT) jointly announced a broad public inquiry into the state of competition in air travel. The agencies jointly issued a Request for Information (RFI) requesting public comments explaining how the air travel industry has been impacted by consolidation and anticompetitive practices and identifying ways to address any harms to competition. Key topics identified in the RFI include airline consolidation, airport access, aircraft manufacturing, air transportation sales channels (including rewards programs), and labor market issues.

FTC Speeches

  • Oral Remarks of Commissioner Melissa Holyoak at Open Commission Meeting. On November 14, 2024, FTC Commissioner Melissa Holyoak spoke at the FTC’s Open Commission Meeting about the new HSR rulemaking and specifically criticized the merger comment portal’s focus on negative comments, which she said is emblematic of the Biden administration’s overall bias against all mergers. Commissioner Holyoak specifically took issue with the form’s constructions and prompts, which she viewed as written to foreclose potentially positive opinions about the relevant merger and elicit only negative opinions.

DOJ Speeches

  • Principal Deputy Assistant Attorney General Doha Mekki Delivers Remarks for the Annual Dinner of the Committee to Support the Antitrust Laws. On October 29, 2024, Principal Deputy Assistant Attorney General Doha Mekki spoke regarding recent victories of both private antitrust plaintiffs and the DOJ’s Antitrust Division. She specifically highlighted private plaintiffs’ victories in cases against digital platforms like real estate associations, elite private colleges, and sports leagues. She also recounted the DOJ’s victories over the last few years and in standing up a task force to root out corporate monopolization and collusion in healthcare.
  • Assistant Attorney General Kanter Delivers Remarks on the Platformization of Healthcare. On November 12, 2024, the DOJ’s Assistant Attorney General Jonathan Kanter delivered remarks discussing how poor antitrust enforcement and competition policy in the healthcare industry has allowed consolidation, anticompetitive conduct, and the emergence of increasingly disproportionally powerful players. Kanter said that antitrust enforcement in the healthcare industry has been focused on provider markets or insurer markets, without considering whether there are other competitive interplays. He said that the platformization of healthcare has involved multi-level entry with companies expanding their market power in one level of the healthcare ecosystem to others, conflicts of interest, and regulatory gamesmanship. These remarks were delivered on the same day that the DOJ sued to block UnitedHealth’s acquisition of Amedysis.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Newsletter is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. Fed. Trade Comm’n, Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act, (Nov. 10, 2022).

  2. Press Release, Fed. Trade Comm’n, FTC Issues Orders to Eight Companies Seeking Information on Surveillance Pricing (July 23, 2024).

  3. Id.

  4. FTC Staff, Behind the FTC’s Inquiry into Surveillance Pricing Practices, Technology Blog (July 23, 2024).

  5. Concurring Statement of Comm’r Melissa Holyoak, Fed. Trade Comm’n, Surveillance Pricing Intermediaries, FTC Matter No. P246202, July 23, 2024.

  6. Department of Justice Report on the Robinson-Patman Act at 250.

  7. Id.

  8. Dissenting Statement of Comm’r Andrew Ferguson, Fed. Trade Comm’n, In the Matter of Southern Glazer’s Wine and Spirits, LLC, FTC Matter No. 211-0155, Dec. 12, 2024; Dissenting Statement of Comm’r Melissa Holyoak, Fed. Trade Comm’n, In the Matter of Southern Glazer’s Wine and Spirits, LLC, FTC Matter No. 211-0155, Dec. 10, 2024.

  9. Comm’r Ferguson dissent at 30.

  10. Id. at 30.

  11. Comm’r Holyoke dissent at 37-38, 49-50.

  12. Id. at 21-25, 29-31, 35.

  13. Mark Meador, Not Enforcing the Robinson-Patman Act is Lawless and Likely Harms Consumers, The Federalist Society (Jul. 9, 2024).

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