Senior Vice President, International Regulatory Affairs & Antitrust, U.S. Chamber of Commerce
February 23, 2023
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.
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.