USA – WASHINGTON, DC Trends and Developments Contributed by: Ashley Eickhof, Mark Weiss, Timothy Finley and Andrew Black, Baker McKenzie
Structural remedies take centre stage Both the FTC and DOJ have long favoured structural remedies – ie, divestitures – over behavioural commit - ments. This reflects a belief that structural solutions are more durable and more likely to be effective, as well as easier to enforce. Recent examples of cases resolved in the DC District Court include the following. • Assa Abloy/Spectrum (2022) – the DOJ required divestitures to resolve overlaps in the hardware and home improvement markets. • Lactalis/Kraft Heinz (2021) – the DOJ mandated the divestiture of cheese brands to preserve competi - tion. • Neenah/US Foundry (2022) – structural remedies were imposed to address concerns in the munici - pal castings market. Merging parties should anticipate that deals involving material horizontal overlaps in concentrated industries may require divestitures to gain clearance. Heightened scrutiny in healthcare and technology Both the healthcare and technology sectors continue to draw close attention from antitrust enforcers. In recent years, the DOJ and FTC have brought sev - eral merger challenges in these industries, including UnitedHealth/Amedisys (2024) , UnitedHealth/Change Healthcare (2022) , and Illumina/Grail (2022–24) in healthcare, as well as Keysight/Spirent (2025) and HPE/Juniper (2025) in the technology space. These cases reflect a broader enforcement trend: agencies are applying more novel theories of harm, such as innovation suppression, data access risks, and vertical foreclosure, especially in markets where technological capabilities and data control are central to competition. Firms operating in these sectors should be prepared for heightened scrutiny, even in transactions that do not raise traditional horizontal concerns. Implications of Illumina/Grail
One such case is Illumina/Grail , which concerned a vertical merger. The FTC originally filed for a tempo - rary restraining order and preliminary injunction in the DC District Court while seeking to pursue an adminis - trative trial in front of one of the FTC’s Administrative Law Judges (ALJs). In the case, the FTC alleged that Illumina was a dominant supplier of next-generation sequencing technology required to develop a multi- cancer early detection (MCED) system. The FTC alleged that Grail would obtain the ability and incen - tive to foreclose or disadvantage its rivals. Illumina and Grail succeeded in the administrative trial before the ALJ but that decision was overturned by a 4–0 decision of the Commission. Illumina/Grail appealed to the 5th Circuit which widely upheld the Commis - sion’s Order, rejecting Illumina/Grail’s fix-it-first rem - edy which took the form of a long-term supply agree - ment. ( Illumina, Inc. v FTC (5th Circuit 2023) .) The case stands as a rare example of antitrust agen - cies successfully blocking a vertical merger by liti - gating to a final decision. It also highlights the varied paths that mergers can take through DC – touching the DC District Court, then proceeding through the FTC’s administrative court system, before reaching a final disposition in the appellate courts. Non-traditional theories of harm in traditional industries: the Penguin Random House/Simon & Schuster merger Another merger case with a non-traditional theory of harm was the Penguin Random House/Simon & Schuster merger. While challenges to horizontal merg - ers are common, particularly between well-estab - lished industry players, the DOJ alleged the merging parties would gain monopsony power in the publish - ing industry because of the proposed combination. Buy-side merger theories of harm are infrequently explored, much less litigated, by antitrust regulators. The relevant market was limited to publishing rights for anticipated top-selling books. And while the DOJ alleged that depressed competition for bestseller bid - ding would have downstream consumer effects on price and quality, the most direct beneficiaries of this theory were top-selling authors – demonstrated by the DOJ’s star witness Stephen King. The DC Dis - trict Court ruled in favour of the DOJ and blocked the
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