Antitrust legendarily unpredictable despite Epic

Bright lines. American trustbusters have a happy case of the Mondays. The United States Federal Trade Commission kicked off the week yesterday by successfully killing drug giant Sanofi’s $750 million agreement to exclusively license a treatment for a rare genetic disease from Maze Therapeutics. The same day, a jury sided against Alphabet’s Google in a case that should offer competition cops some reassurance that their arguments are taking root. The silver lining for dealmakers is that, as success for a $43 billion deal by Pfizer on Tuesday shows, antitrust agencies aren’t omnipotent.

The first blow to big companies came when a California jury sided with video-game maker Epic Games, which had launched a case against Google over its strict rules controlling the download and payments systems of apps. Despite thus far fighting to a draw against Apple on similar charges, it won versus Sundar Pichai’s company on all counts.

There was a wild card. Unusually for antitrust cases, Epic’s included a jury trial. That naturally pushes litigators towards a more emotive, less legalese-burdened, approach. And Epic had an ace to play: allegations that Google had deleted internal messages is a decidedly bad look for a skeptical panel of peers less steeped in the particulars of legal precedent. That may loom large for the technology giant in another case brought by the Department of Justice, which has also requested a jury trial. The public consciousness has also now been seeded with the idea that Big Tech can be defeated.

Of course, the easiest victories come outside of court, and here the FTC continues to make progress. Drugmaker Sanofi preemptively dropped its deal with Maze in the face of resistance from the agency led by Lina Khan. Again, a clampdown happened unusually. The drug that Sanofi wanted is years from hitting the market. Nonetheless, it’s a success in an area agencies have long prioritized, where potentially disruptive upstarts are acquired early to protect a monopoly.

Yet rainmakers can’t be blamed for feeling the Terrific Tuesdays nonetheless. Pfizer’s $43 billion deal for Seagen has hung in limbo for eight months as investors feared an unpredictable FTC would sue no matter the merits. That the deal received clearance today is a relief for dealmakers searching for limits beyond which the agencies won’t push. It wasn’t exactly amicable. Trustbusters issued a form letter warning that they could find the deal unlawful down the road, according to a source familiar with the situation. But, for now, it’s but a small reminder that even the most aggressive consolidation fighters in a generation can’t stop everything.

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A jury in the United States District Court for the Northern District of California on Dec. 11 unanimously sided with video-game maker Epic Games in its antitrust lawsuit against Alphabet’s Google. The jury found that Google violated antitrust laws in the markets for app distribution and billing on its Android operating system. The United States Federal Trade Commission said on Dec. 11 that it moved to block pharmaceutical giant Sanofi from acquiring an exclusive license to develop a drug targeting a rare genetic disease, Pompe, from Maze Therapeutics. Sanofi subsequently announced that it had terminated the deal. The following day, Dec. 12, pharmaceutical company Pfizer announced that the regulatory waiting period for its $43 billion acquisition of Seagen had expired without objection, meaning that it had now had all required clearances to close. The company said that it had agreed to donate the rights to royalties from sales of a cancer drug co-developed with Merck to charity in order “address” FTC concerns.