The antitrust chief at the Department of Justice credited a better communications approach to helping the agency and the Federal Trade Commission win in the courtroom and in the court of public opinion.
“I believe [our court wins] stem, in part, from the way our teams … are telling human stories and seeing those stories resonate with the courts and the broader public,” Jonathan Kanter, assistant attorney general for antitrust, said at a conference with competition officials in Mexico.
The revised merger guidelines DOJ and FTC jointly released last year drew thousands of public comments during the proposal period, Kanter said. That’s a number the agencies have never seen before, a result Kanter attributed in part to a decision by the agencies to replace legalese with plain language in drafting the guidelines.
“In the past, we typically received only a few dozen comments when revising the guidelines,” he said. “This was a byproduct of … an overly technocratic process and often impenetrable language.”
Kanter didn’t mention that Hollywood workers, who were striking at the time the guidelines were being written, leveraged the public comment period to flood the agencies with letters critical of consolidation among companies that produce movies and shows.
“Help Hollywood!” one commenter said in a letter that’s representative of hundreds of others. “Fix corporate greed. regulate these tech companies and stop vertical integration.”
In his remarks, Kanter showcased the storytelling approach by walking through the success his agency had in appealing a case that had been dismissed at the lower court level.
“Leinani Deslandes was a fry cook at McDonald’s earning $7 an hour who worked her way up and was offered a management position,” Kanter said. “That’s supposed to be the upward mobility you can earn with free market capitalism. Ms. Deslandes faced a problem, though. The management offer she got was from a competing McDonald’s. The corporation’s contracts with franchises stood in the way because they commit franchises not to hire each other’s workers. So, they said that Ms. Deslandes could not take the new management role or the better hours and better pay.”
By keeping the focus on stories that people can relate to and minimizing technical legal language, he said, antitrust efforts at many levels are seeing more wins.
“In the last year the DOJ and FTC have seen an incredible string of successes in important merger cases in the federal courts,” he said.
Kanter didn’t walk through the wins but, since December, a number of mergers have been called off on antitrust grounds, including Adobe’s $20 billion takeover of design platform Figma, which was announced two days after the company met with DOJ antitrust enforcers. Healthcare giants Cigna and Humana abandoned their plans to merge. And the FTC notched a win when John Muir Health abandoned its $142.5 million acquisition of San Ramon Regional Medical Center. In addition, the 5th Circuit Court of Appeals ruled in favor of the FTC’s argument that Illumina’s acquisition of Grail would lessen competition in the market for some cancer tests.
The American Economic Liberties Project reported these and other wins on its website.
The agencies have had a number of high-profile losses, too, in the last year, which Kanter didn’t reference. Among them are the mergers between Booz Allen Hamilton and EverWatch, UnitedHealth and Change Healthcare, U.S. Sugar and Imperial Sugar, Meta and Within Unlimited and Microsoft and Activision.
All of these were mergers the agencies tried to stop but didn’t. The U.S. Chamber of Commerce has been keeping a tally of the losses on its website.
