RECENT DEVELOPMENTS

1. KROGER AND ALBERTSONS SAY GOODBYE. Last week, a federal and state judge agreed with the FTC, union workers, and consumers, finding that a Kroger and Albertsons merger would reduce competition in the supermarket industry. All along, Kroger claimed they needed to “merge to compete,” an argu ment the judges rejected. In response to the loss, Albertsons is suing Kroger for a termination fee and money spent on the deal, and Kroger and Albertsons are conducting billions in stock buybacks.
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   Suggested Reading:
   • Creating Mothra to Fight Godzilla Just Makes More Destructive Monsters: Why Merge-to-Compete Arguments Are Contrary to the Letter and Spirit of Antitrust Laws and How Resulting Mergers Have Harmed the Public, by Ashley Nowicki and Laurel Kilgour
   • Barons: Money, Power and the Corruption of America’s Food Industry, by Austin Frerick
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2. RPA REVIVAL! For the first time in nearly 25 years, the FTC has sued to enforce the Robinson-Patman Act (RPA), a 100-year-old law banning price discrimination. The agency claims Southern Glazer’s Wine and Spirits, the nation’s largest distributor of alcoholic beverages and tenth largest private company, illegally charged smaller retailers more than big-box chains for the same products, raising prices for consumers. Though incoming FTC Chair Andrew Ferguson dissented in this case, his statement suggested an openness to RPA enforcement overall, and the case could impac t distributor pricing in other market areas.
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   Suggested Reading:
   • Price Discrimination and Power Buyers: Why Giant Retailers Dominate the Economy and How to Stop It by Katherine Van Dyck
   • Not Enforcing the Robinson-Patman Act is Lawless and Likely Harms Consumers by Mark Meador
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3. HEALTHCARE MIDDLEMEN. U.S. health care has a ‘conflicts of interest’ problem. The largest health conglomerates — CVS, Cigna, and UnitedHealth — increasingly own every part of the healthcare delivery chain, including providers, pharmacy benefit managers, pharmacies, and insurance companies. The result is higher prices for employers and patients, and reduced access and quality of care. Last week, bipartisan Senators Warren (D-MA) and Hawley (R-MO) and Representatives Auchincloss (D-MA-4) and Harshbarger (R-TN-1) introduced legislation to start eliminating these conflicts. Specifically, the Patients Before Monopolies Act would ban PBMs and health insurers from owning pharmacies.
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   Suggested Reading:
   • Break ‘Em Up: Recovering Our Freedom from Big Ag, Big Tech, and Big Money by Zephyr Teachout
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4. JUNK FEES SWAN SONG. President Biden’s effort to ban junk fees across the economy is ending on a high note. Last week, the CFPB finalized a rule limiting overdraft fees banks and credit unions with more than $10 billion in assets can charge, estimated to save consumers $5 billion annually. In addition, the FTC finalized a rule limiting junk fees in the live-event ticketing and short-term lodging markets by requiring merchants to disclose fees upfront and present an “all-in” price before purchase. The FTC’s rule will be effective 120 days after publication in the Federal Register. The CFPB’s rule is expected to take effect October 1, 2025, but a lawsuit may prevent its implementation.
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   Suggested Reading:
   • Monopolies Suck: 7 Ways Big Corporations Rule Your Life and How to Take Back Control by Sally Hubbard
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5. TARIFFS: ONE TO WATCH. Rethink Trade team’s primer debunks common myths about tariffs, breaking down how they do not necessarily raise consumer prices. In fact, many working class voters view tariffs as a sign of political solidarity, similar to opposing NAFTA. Biden maintained many tariffs from Trump’s first term, imposed some higher ones, and added complementary tax, procurement and other industrial policy tools, resulting in the greatest investment in new American factories in 30 years. Will President-elect Trump further build on these policies or reverse them? Stay tuned.
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   Suggested Reading:
   • No Trade Is Free by Robert Lighthizer‌

And, finally, in honor of departing FTC Chair Lina Khan, we recommend reading her 2017 paper, Amazon’s Antitrust Paradox, to learn more about many of the principles underlying the current, bipartisan revival of antitrust enforcement.