As the second Trump administration reaches its 60-day mark, it is a good time to take stock of the US antitrust agencies’ actions. The Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (DOJ) have been busy despite the broader government shakeup. Enforcement patterns are emerging. For example, FTC Chairman Andrew Ferguson has been transparent about his priorities—health care, technology platform dominance, and labor. As the timeline below shows, he has wasted no time in implementing initiatives and enforcement in these areas. As for the DOJ, Assistant Attorney General Abigail Slater was sworn in last week, and her enforcement priorities will likely take more shape in the coming 60 days. The DOJ, however, has remained active, especially in the Sherman Act enforcement space.
Here is a rundown of the Trump 2.0 administration activities in the first 60 days.
Policy and Initiatives
Even though the current antitrust leaders have been in place for less than 60 days, they have provided early guidance and initiatives.
The DOJ and the FTC announced they will rely on the 2023 Merger Guidelines in their assessment of deals. The FTC launched an investigation into whether the large technology platforms are leveraging their market power to censor conservative voices. The FTC launched a joint labor task force to protect American workers.
In breaking news, President Trump fired the two Democratic FTC Commissioners, leaving Chairman Ferguson with no minority voices on the Commission. It remains to be seen whether President Trump will select replacements and, if so, from which party but, in the meantime, Chairman Ferguson has unconstrained power to shape FTC policy and initiatives.
Merger Control
Both agencies initiated lawsuits to block acquisitions within the first 60 days. The DOJ challenged Hewlett Packard Enterprise’s (HPE) acquisition of Juniper, and the FTC challenged GTCR’s acquisition of Surmodics, a merger involving medical device coatings companies.
The FTC also issued several second requests, including to Aya Healthcare and Cross Country for their nursing staffing deal, to Arthur J. Gallagher & Co. and AssuredPartners for their insurance deal, and to Omnicom and Interpublic for their advertising deal. Second requests are not always made public, and given the FTC’s activity, it would not be surprising to learn of others.
The FTC filed an opposition to Union Health and Terre Haute Regional Hospital’s Certificate of Public Advantage (COPA) filing. COPAs are merger filings required by state governments that immunize mergers from federal antitrust scrutiny under the state action doctrine. The FTC has a history of filing similar oppositions to hospital COPAs and has advocated for the end of COPA laws.
Sherman Act Enforcement
Even before Slater was sworn in, the DOJ was hard at work. The DOJ opened an investigation into egg pricing and whether egg producers are exchanging competitively sensitive information and fixing prices.
The DOJ secured eight guilty pleas for monopolizing and fixing prices in the transmigrante forwarding industry. Transmigrantes transport used vehicles and other goods from the US through Mexico for resale in Mexico.
Takeaways
Antitrust enforcement remains robust, and the enforcers are not distracted by the government downsizing.
The pace of antitrust merger review suggests mergers will face as much scrutiny under the Trump administration as under the Biden administration. Given this and because the new Hart-Scott-Rodino filing rules require extensive ordinary-course document production, it would be wise to involve antitrust counsel early when contemplating a deal.
All companies should remain diligent in following the antitrust laws—enforcement will not be lax. Companies in the health care space should be especially mindful that Trump’s FTC leaders have already signaled heavy scrutiny. Health care companies should ensure their antitrust compliance programs meet the DOJ’s 2024 guidance, refresh their antitrust training for employees, and ensure their human resource departments understand the DOJ’s hiring guidance.
