10 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 11 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C The aggressive antitrust enforcement agenda by the Biden Administration continued apace in 2023 with few signs of slowing from its 2022 high. As the government agencies continue pushing new theories and taking bold enforcement actions, clients should anticipate and carefully consider increased antitrust scrutiny of transactions and conduct in 2024. The Antitrust Agencies Continue to Push an Aggressive Enforcement Agenda Numerous Merger- and ConductRelated Litigations The DOJ and FTC (the “Agencies”) continued pursuing an aggressive antitrust enforcement agenda, which we expect to continue in 2024. Set against the backdrop of ongoing litigations broadly challenging the business practices of Google, Meta, and Amazon, the antitrust agencies pursued additional merger enforcement litigations in the face of proposed settlements and based on novel theories of harm. The results of 2023 indicate that the Agencies may face significant headwinds from courts if they fail to support their allegations with sufficient facts, especially with novel theories of harm. Similarly, the Agencies must navigate the tension between their stated preference for litigations to block mergers and the realities of litigating cases with offered remedies on the table. Notwithstanding several losses in court, the Agencies appear committed to pressing on. The year began with a federal district court denying the FTC’s challenge to Meta’s acquisition of Within Unlimited (Weil represented Meta in connection with the acquisition and the subsequent litigation). This challenge – initially touted as a sign of the FTC’s aggressive regulation of “Big Tech” companies – relied on a difficult-to-prove potential competition theory of harm. The court’s decision foreshadowed the headwinds the Agencies would face the rest of the year. These headwinds included a string of litigations settled on the eve of trial, including the FTC’s challenges to Amgen’s acquisition of Horizon Therapeutics and Intercontinental Exchange’s acquisition of Black Knight, as well as the DOJ’s challenge to Assa Abloy’s acquisition of a Spectrum Brands business unit. Though not an outright loss in litigation, these settlements highlighted judicial skepticism toward the Agencies’ stated preference for blocking mergers outright as opposed to negotiating settlement offers to alleviate competitive concerns. The FTC’s mixed court record continued into the fall, with the agency losing its bid in court to block Microsoft’s acquisition of video-game publisher Activision on a vertical theory of harm (Weil represented Microsoft in connection with the acquisition and the subsequent litigation). The FTC’s loss again highlighted the tension with the Agencies’ preference for litigation, as opposed to settlements, as the court favorably cited a proposed remedy Microsoft offered to alleviate the FTC’s concerns. The Agencies ended 2023 on a higher note with a few wins, including in the Fifth Circuit, which largely endorsed the FTC’s legal theory in its challenge to Illumina’s acquisition of I Antitrust Brianne Kucerik Co-Head Washington, D.C. brianne.kucerik@weil.com Michael Moiseyev Co-Head Washington, D.C. michael.moiseyev@weil.com Jeffrey Perry Co-Head Washington, D.C. jeffrey.perry@weil.com
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