Sep 20, 2022 - Economy

U.S. antitrust regulators take another big loss

Illustration of a pair of aviator sunglasses with scales of justice moving up and down in one lens.

Illustration: Brendan Lynch/Axios

President Biden's Q: Who's afraid of Joe Biden's antitrust enforcers?

A: Fewer people than last month.

Driving the news: A federal judge yesterday ruled that UnitedHealth can proceed with its $13 billion acquisition of Change Healthcare, denying a U.S. Justice Department effort to block the deal.

  • UnitedHealth first agreed to buy Change two weeks before Biden took office, and the DOJ sued this past February. The trial took place in August, with DOJ primarily arguing that the deal would give UHG access to competitively sensitive data from rival health insurers.
  • The ruling in UHC's favor comes just weeks after a Federal Trade Commission administrative judge denied that agency's efforts to block Illumina from buying Grail, although Illumina subsequently lost a similar case in front of the European Commission.

The big picture: These back-to-back defeats highlight how while Biden's antitrust regime talks a big game, and has significantly stepped up reviews and litigation, its bark can be worse than its bite.

  • The upshot is that big tech and big health care and big widget continue to sign mega-merger agreements, viewing the antitrust risks as relatively minimal.
  • Even companies like Amazon, which just agreed to buy both One Medical and iRobot, despite being explicitly in the regulatory crosshairs. Or Adobe, which must know that its Figma deal is going to receive more than a passing antitrust glance.

Caveat: Yes, there have been Biden-era mergers scuttled pre-trial, with buyers deciding the risk, cost and time outweighed the reward.

  • These include Lockheed/Aerojet, Konecranes/Cargotec and Aon/Willis Towers Watson. And a couple of more court decisions are still outstanding: U.S. Sugar/Imperial Sugar and Penguin Random House/Simon & Schuster.
  • A DOJ spokesperson says: "Our job is to bring the right cases for the right reasons. Not doing anything is not an option."

Look ahead: The Senate Judiciary Committee is holding an antitrust law hearing on Tuesday afternoon at 3pm ET, including testimony from DOJ and FTC officials. (watch here).

💭 Thought bubble, from Axios tech policy reporter Ashley Gold: "Those pushing for more antitrust cases have said they are willing to accept losses, and just want to see the government be more active in trying to prevent big mergers. But it's not clear who benefits if losses start to stack up."

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