USA Trends and Developments Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
parties from reaching “any agreement, understanding, rule or practice, with any third party with respect to Media Buying Services” that would impose ideologi - cal criteria as a precursor on determining what, where and which ads are placed. On announcing the settle - ment, FTC Chairman Ferguson noted that the risk of anti-competitive boycotts in the ad market is “real and needs to be confronted and taken seriously” because “part of the way that people who have ideas get them out there is they make a living by promulgating ideas”. The Omnicom/IPG settlement does not necessarily presage increasing acceptance of behavioural rem - edies. Chairman Ferguson cautioned that while “the parties have proposed a remedy in the form of con - duct restrictions that will mitigate this merger’s anti - competitive effects”, the “history of collusion in the market for media-buying services, and the increased potential for collusion postmerger, make this a rare instance where the imposition of a behavioral remedy is appropriate”. Litigating the fix: GTCR/Surmodics In March 2025, the FTC filed a complaint in the North - ern District of Illinois seeking to enjoin a proposed USD627 million transaction between GTCR-owned Biocoat Inc and Surmodics. The FTC alleged that the proposed merger would result in a 60% market share in the United States “outsourced hydrophilic coat - ings” market, leading to higher prices, lower quality and reduced innovation. In mid-April 2025, the FTC filed an amended complaint for preliminary injunction. In the course of the litigation, the parties proposed a partial divestiture. In the proposal, Biocoat would divest its hydrophilic coatings business, a portion of its thermal-cured coatings lines, and the correspond - ing FDA master files, to Integer Holdings Corp (“Inte - ger”). The FTC criticised the “late-hour remedy” as insuf - ficient and filed a motion in limine to exclude the par - ties’ proposed remedy. Judge Jeffrey Cummings of the Northern District of Illinois ordered the parties to engage in settlement discussions, but the parties were unable to reach an agreement. In rebutting the par - ties’ proposed fix, the FTC argued that the proposed divestiture would not completely restore competition.
The FTC contended that the merged entity would retain “the things that make Biocoat and Surmodics competitively significant” and, without the key assets and personnel required, Integer would not have the incentive or ability to effectively compete against the merged entity. The FTC further highlighted that Inte - ger would be paying a fraction of Biocoat’s full value, that the license-back provision created a heightened long-term interdependency between the merged party and Integer and that Integer had tried, and failed, to enter the market before and is not the appropriate divestiture buyer at this juncture. The court rejected the FTC’s arguments and denied the preliminary injunction. The court criticised the FTC’s analysis on the basis that it did not account for the effects of the parties’ proposed divestiture. It rejected the FTC’s all-or-nothing approach and explained that the defendants “are not required to show that the divestiture would negate the anti-competitive effects of the merger entirely”. Rather, the court found “that defendants are only required to show that the pro - posed divestiture sufficiently mitigated the merger’s effect, such that it was no longer likely to substantially lessen competition”. The court also noted that “although this is a partial and not a full divestiture, the evidence reflects that the divested assets, information, employees, facility and equipment will fill an important capability gap in Inte - ger’s business; and, with the addition of the assets, personnel, information and equipment that will come by virtue of the divestiture, it will allow Integer to serve as a one stop shop for the manufacturing and applica - tion of hydrophilic coatings.” The court also credited GTCR’s counterargument that Integer’s previous fail - ure gives them the experience and capability to suc - cessfully operate the divested assets. The GTCR case highlights the challenges faced by the US agencies in addressing parties’ increased use of “litigate the fix” strategies. In May 2026, the FTC hosted a workshop aimed at promoting a more col - laborative process for remedy negotiation. FTC Chair - man Ferguson observed that “litigating the fix is not good for the Commission, for the courts, or for our system of antitrust enforcement”. He complained that the “introduction of a proposed fix at the eleventh hour
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