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WHEN COOPERATION CROSSES THE LINE

Is the Federal Trade Commission working foreign authorities to deny due process?

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 * Antitrust/



Sean Heather

Senior Vice President, International Regulatory Affairs & Antitrust, U.S.
Chamber of Commerce



Published

February 23, 2023

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The U.S. Chamber of Commerce has led the effort to hold the Federal Trade
Commission’s accountable for its overreach.

As part of our efforts, the Chamber submitted a FOIA request to the agency in
January 2022 requesting communications the agency had with foreign competition
authorities on an American biotech merger between two companies, Illumina and
Grail.  


READ MORE

 * What's Going on at the FTC?
 * U.S. Chamber Letter on FTC Oversight
 * Inside the FTC’s Ploy to Quash A BioTech Merger

Ultimately to obtain the information, the Chamber had to sue the FTC. Following
a year of stonewalling and obfuscation, the agency was forced to turn over the
documents. What we found is an extensive amount of communication, initiated by
the Federal Trade Commission, to foreign jurisdictions that have no business
reviewing the transaction.  

The Federal Trade Commission cooperates with foreign regulators to avoid going
to court

The documents demonstrate that the Federal Trade Commission initiated
communications with foreign competition authorities, including the European
Commission,  after Illumina publicly announced its intent to acquire Grail.
After these communications, the European Commission announced its intention to
block the merger using a novel interpretation of its laws.

This action by the European Commission, and the coordination between the Federal
Trade Commission, is extremely concerning because the company being acquired has
no sales and no business operations in the European Union.   

An overlay of the timeline of communications with the FTC’s actions in the U.S.
– including filing and then withdrawing a complaint in federal court – strongly
suggests that the FTC was working with foreign regulators to block the merger
without having to do so in U.S. court. The FTC’s actions raise significant
concerns that rather than simply cooperating with foreign regulators on
transactions appropriately pending before both bodies, the FTC is
coordinating with foreign regulators to deny merging parties their due process
rights in U.S. courts. 

Congressional oversight is needed 

The process surrounding the Federal Trade Commission’s attempt to block the
Illumina-Grail merger by subjugating American companies to foreign laws without
any discernable nexus to their operations is in and of itself enough to suggest
the agency is in dire need of congressional oversight. Unfortunately, the FTC’s
malfeasance, malpractice, and mismanagement go far beyond this instance.  

The American business community and consumers need an FTC that is transparent,
accountable, and operates within the confines of the authority granted to it by
Congress. That is exactly why the Chamber is calling for immediate congressional
oversight over the agency.


ABOUT THE AUTHORS

SEAN HEATHER

Senior Vice President, International Regulatory Affairs & Antitrust, U.S.
Chamber of Commerce

Sean Heather is Senior Vice President for International Regulatory Affairs &
Antitrust.

Read more


TOPICS

 * Antitrust
 * Finance




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   By Sean Heather
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   By Stephanie Ferguson

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   DOJ’s Approach to Antitrust Violations: We Know Them When We See Them 
   By Sean Heather

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