Closed-system electronic cigarettes

JUUL “dominated” the relevant market with 70% market share; Altria was the second-largest player

The FTC filed a Part 3 administrative complaint against Altria Group and JUUL Labs, seeking to unwind a series of agreements between the companies whereby Altria allegedly agreed to cease competing in the e-cigarette market in exchange for a 35% stake in JUUL. The FTC alleges that JUUL was the dominant player in the e-cigarette market at the time of the agreements, and that the agreements harmed competition by securing Altria’s exit from the market. According to the FTC, consumers lost the benefit of current and future head-to-head competition between Altria and JUUL, and between Altria and other competitors.

The FTC proceeding has been stayed multiple times due to the COVID-19 pandemic, and the evidentiary hearing is currently scheduled for April 2021.

Coal mining operations in the southern Powder River Basin in northeastern Wyoming

Top two producers with combined share of 60%

The FTC filed a complaint against a proposed joint venture between Arch Coal and Peabody Energy on February 26, 2020. The FTC also sought a temporary restraining order and preliminary injunction from the US District Court for the Eastern District of Missouri. The FTC alleges that the merger would eliminate head-to-head competition between the two largest coal mining companies in the United States, who control 60% of all coal mined in the southern Powder River Basin of Wyoming. The parties argue for a wider product market definition, to include natural gas and other alternative fuels.

The federal court hearing took place in July and August, and the FTC administrative trial began on August 11, 2020.

Inpatient general acute care hospital services and inpatient acute rehabilitation services in Philadelphia and Montgomery Counties, Pennsylvania

Alleged combined shares of between 45% and 70% in different service lines in north Philadelphia and Montgomery County

Will the merger eliminate competitive pressure that has driven quality improvements and lowered rates, or will the merger result in price efficiencies and cost synergies?

Is the relevant geographic market confined to the northern Philadelphia and Montgomery County areas?

The FTC sued to block the merger of Jefferson Health and Albert Einstein Healthcare Network, two hospital systems in Pennsylvania. The FTC argues that Jefferson and Einstein compete to improve quality and service by upgrading medical facilities and investing in new technologies. The FTC believes that together, the parties would control 60% of inpatient general acute care hospital services in north Philadelphia and 45% in Montgomery County, and 70% of inpatient acute rehabilitation services in Philadelphia.

The FTC also filed for a temporary restraining order and preliminary injunction in the US District Court for the Eastern District of Pennsylvania. The administrative trial is scheduled to begin on January 5, 2021. The FTC issued several stays of the proceedings in response to the COVID-19 pandemic and set a new scheduling order on July 13, 2020.

Sale of body-worn cameras and digital evidence management systems to large metropolitan police departments

Merger of two close competitors

Is the body-worn camera product market limited to large police departments (500 or more sworn officers)? Can other video technology companies enter the body-worn camera market?

Does the US Constitution allow the FTC to challenge consummated transactions in its own internal administrative proceedings?

The FTC filed an administrative complaint challenging Axon Enterprise, Inc.’s consummated acquisition of VieVu from Safariland, LLC. The FTC also challenged noncompete agreements that Axon and Safariland signed in connection with the acquisition. The FTC alleged that VieVu was Axon’s closest competitor in the sale of body-worn cameras and digital evidence management systems to large metropolitan police departments. By defining a narrow “price discrimination market” around a specific category of customer, the FTC determined that large metropolitan police departments have distinct requirements for these products that differ from other law enforcement organizations.

In response, Axon filed a complaint in the District of Arizona, arguing that the FTC’s administrative process is unconstitutional, and alleging that the structure of the FTC is unconstitutional due to the limited ability to remove FTC commissioners. Axon sought a preliminary injunction to place the administrative matter on hold. On March 10, 2020, Judge Dominic Lanza issued a tentative ruling stating that the court lacks subject matter jurisdiction and the issues should be raised during the administrative process, and if necessary, appealed to the US Court of Appeals for the Ninth Circuit. In the second quarter, on April 8, 2020, Judge Lanza finalized his order and dismissed Axon’s constitutional claims. On April 13, 2020, Axon filed a notice of appeal to the Ninth Circuit.

The administrative trial was originally scheduled to begin May 19, 2020, but was stayed due to the COVID-19 pandemic. The administrative trial is now scheduled to begin on October 13. Discovery is ongoing.

Processing and sale of fluid milk in several geographic markets

Prior to bankruptcy, Dean Foods was the largest fluid milk processor in the United States; DFA also owned multiple processing plants

Myoelectric elbows

4 to 3

Large geostationary satellite antennas

CPI and GD SATCOM are the only two significant suppliers

Casino services in three geographic markets

3 to 2 in south Lake Tahoe area; 5 to 4 in Bossier City-Shreveport area; 5 to 4 in Kansas City area

Various products used for research and development (R&D) of biopharmaceutical drugs

Danaher and GE are 2 of a limited number of significant participants in each relevant market

Automotive body sheets

Novelis and Aleris are 2 of 4 firms that produce automotive body sheets in North America; combined they would have more than half of domestic sales and 60% projected total domestic capacity

The EC approved the acquisition of LSG’s European business (excluding LSG’s retail onboard business) by Gategroup, subject to conditions.

The EC’s investigation found that the transaction, as initially notified, would have led to a quasi-monopoly or would have left, at most, only one remaining viable competitor in the markets for in-flight catering services at Brussels, Berlin-Tegel, Cologne, Düsseldorf, Frankfurt, Hamburg, Hannover, Munich, Paris Charles de Gaulle and Rome Fiumicino airports.

Gategroup committed to divest the overlap businesses to facilitate the entry or expansion of competing in-flight caterers at the relevant airports. The divested businesses included customer in-flight catering contracts and facilities, other tangible assets such as high-loaders, personnel and certain intangible assets.

The EC approved the merger between Mylan and Upjohn, a business division of Pfizer, which operates Pfizer’s off-patent branded and generic pharmaceuticals.

Mylan and Upjohn overlap in various therapeutic areas such as cardiovascular, genitourinary, musculoskeletal, nervous system and sensory organ treatments.

Although the EC’s investigation found that no competition concerns arose for the majority of products, it found that, in some countries and for some molecules, the transaction would raise competition concerns because of the strong position of the two companies, and the limited number of significant competitors, in particular, with respect to 36 molecule-country pairs.

To address these concerns, Mylan and Upjohn agreed to divest Mylan’s business in the relevant markets, including certain generic pharmaceuticals across 20 countries throughout the European Economic Area.

The proposed commitments removed the entirety of the overlaps between Mylan and Upjohn in the markets that raised concerns.

The EC approved Aurubis’ acquisition of Metallo, following an in-depth investigation.

Aurubis (Germany) is the largest integrated copper producer in Europe and the world’s largest refiner of copper scrap. Metallo Holdings (Spain) is also specialized in copper scrap refining. Both companies are important buyers of copper scrap from industrial production and end-of-life products within the European Economic Area.

The EC distinguished copper scrap for refining from copper scrap for direct melt. Within copper scrap for refining, different markets exist for the relatively standardised products “copper scrap #2” and e-scrap, as well as for the more heterogeneous copper scrap for smelting and refining.

The EC had concerns that the increased buyer power of the merged company would give it a dominant position in scrap purchasing with the effect of impairing the functioning of the copper recycling market, specifically harming industrial suppliers of copper scrap, which sell scrap as a by-product of their production process.

Ultimately, the EC’s concluded that the transaction was unlikely to result in significant harm to suppliers of copper scrap for smelting and refining.

The EC approved Elanco’s acquisition of Bayer’s Animal Health (BAH) division, subject to conditions.

Both Elanco and BAH develop and supply pharmaceuticals for pets and livestock. The transaction would have led to the creation of the second-largest animal health company globally.

The EC found that the transaction, as originally notified, would have raised competition concerns in a number of countries in the European Economic Area in relation to otitis products for pets, as well as several types of parasiticides, namely: (i) anticoccidials for ruminants (cattle and sheep); and (ii) parasiticides for pets (treatments against parasites). In these markets, both companies have strong positions and/or face a limited number of competitors.

To address these concerns, Elanco and BAH agreed to divest Elanco or BAH’s products and/or pipeline products in relation to otitis, anticoccidials and parasiticides for pets in the European Economic Area, including all the necessary assets such as applicable licenses, contracts and brands, as well as relevant studies and data.