In brief: antitrust and consumer protection update, Q3 2022

The third quarter of 2022 was an eventful period for antitrust and consumer protection.  Here are a few key developments you may have missed, and some news to watch for in the months to come. 

• DOJ memo provides guidance for antitrust compliance programs. In a memorandum issued on September 15, 2022 and in an accompanying speech, Deputy Attorney General Lisa Monaco provided important new details on the Department of Justice (DOJ)’s approach to prosecuting corporate crime.  This memo has important implications for antitrust compliance as it underscores the importance of proactively detecting antitrust violations and the potential value to corporations of prompt and complete self-reporting.  The memo also instructs prosecutors to consider whether a corporation has structured its compensation to incentivize compliance when assessing the quality of the company’s compliance program.
• FTC in overdrive. In late August, the Federal Trade Commission (FTC) approved omnibus resolutions granting staff broad authorization to issue compulsory process without needing further commission authorization. These resolutions targeted anticompetitive “collusive” practices; mergers and acquisitions, including (and perhaps particularly) mergers not subject to HSR Act reporting requirements; and the rental car industry.  These followed fifteen similar blanket resolutions issued in 2021.Commissioners Noah Joshua Phillips and Christine S. Wilson voted against the August resolutions, noting that, together with the resolutions passed last year, “these broad resolutions eliminate the only layer of Commission oversight concerning the use of compulsory process in the vast majority of the agency’s competition-related investigations.”
• Monetary penalties in play for advertisers. This quarter, the FTC received public comment on proposed changes to the Endorsement Guides, with an increased focus on social media and advertising to children.  This comes against the backdrop of statements from multiple senior FTC officials that they intend to pursue consumer protection violations aggressively.  On September 19, FTC Bureau of Consumer Protection Director Samuel Levine stressed that he will not hesitate to seek monetary penalties from advertisers that deceive consumers by pressing false marketing claims.  And Serena Viswanathan, the associate director of the FTC's division of advertising practices, noted that the FTC is planning to “look at every player in the game,” including endorsers, advertisers, marketing agencies and digital platforms.
• DOJ presses on aggressively despite trial losses. In September, a DC District Court Judge denied the DOJ’s request to enjoin a high-profile healthcare merger.  Earlier, in July, a jury in Denver returned non-guilty verdicts in the DOJ’s case against five broiler chicken industry executives for alleged price-fixing.  The DOJ has also suffered losses in recent attempts to bring criminal charges over alleged labor market antitrust violations.  Still, antitrust defendants should be cautious not to read too much into these cases.  The Antitrust Division continues to pursue an active litigation docket – it will litigate more merger trials this year than in any prior fiscal year and has indicted more criminal cases recently than at any time since the 1980s.A few losses do not necessarily amount to a meaningful trend.
• Fix your own merger. In September, Ryan Danks, Director of Civil Enforcement at the DOJ’s Antitrust Division, commented that parties considering a potentially anticompetitive merger should figure out how to fix competitive problems themselves before approaching the DOJ.  "It’s not my job to try to figure out how to gerrymander competition into a market that is going to be diminished as a result of the merger,” Danks said. “My job is to stop the merger if it’s going to be diminishing competition in the first place."
• Right-to-repair enforcement. After announcing its plans to increase enforcement of the Magnuson-Moss Act’s prohibition on repair restrictions last year, the FTC announced three enforcement actions in July. The FTC stated, “Other companies that squelch consumers’ right to repair should take notice.”
• Reactivating Robinson-Patman enforcement. The Robinson-Patman Act was enacted in 1936 to protect small businesses, and prohibits certain discrimination in pricing, allowances and advertising or promotional support. The Act fell out of favor in the 1980s as efficiency assumed a more prominent role in antitrust analysis. Since then, it has rarely been enforced – and almost exclusively by private parties. However, on September 22, FTC Commissioner Alvaro Bedoya stated that the FTC is looking for ways to “reactivate” application of the law. Companies should be on the lookout for a potential policy statement from the FTC on future enforcement of the Act.

Learn more about these developments or other antitrust or consumer protection issues by contacting the authors or another member of the DLA Piper team.