The nine litigation complaints filed in the first three quarters of 2022 are already the most observed in a single year since DAMITT started tracking in 2011, and there is still one quarter left to go.
While the U.S. antitrust agencies today increasingly favor litigation, the data show that litigation increasingly does not favor the antitrust agencies. By the end of Q3, neither the DOJ nor the FTC had yet secured a win based on a complaint filed by the Biden administration in federal district court.
Instead, in September 2022 alone, DOJ lost its challenge to two transactions—UnitedHealth / Change Healthcare and U.S. Sugar / Imperial Sugar—in the span of a week. If the pending case against Penguin Random House / Simon & Schuster also results in a loss, the current administration will have overseen the longest period without a successful litigation complaint since 2014. At this point, DOJ’s litigation stance seems poorly aligned with its court record.
As important, the government losses referenced in the data above are understated for two reasons. First, because the data only lists results in federal district court, the data do not include the FTC’s unusual loss before its own administrative law judge in Illumina / Grail, which also occurred in September. The FTC typically wins in this forum, however it also lost a challenge before the same administrative law judge in Altria / JUUL back in February. (That earlier loss also is absent from our data, both because of the forum and because it was challenged after the merger was consummated.)