On December 15, 2023, a panel of the United States Circuit Court for the Fifth Circuit vacated and remanded the U.S. Federal Trade Commission’s (the “Commission,” when referred to as a judicial body, and “Complaint Counsel” when referred to as a complainant) April 3, 2023 Opinion and Order, which required Illumina, Inc. (the “Company”) to divest Grail, Inc. (the “Acquiree”).  Although the Fifth Circuit substantially agreed with the Commission’s initial Clayton Act Section 7 analysis reversing an Administrative Law Judge’s (“ALJ”) September 2022 dismissal of the complaint, it held that the Commission made a “legal error” when it analyzed the Company’s pre-closing standardized consumer supply contract as a remedy, instead of as rebuttal evidence to the Complaint Counsel’s prima facie case.

On September 19, 2022, Judge Carl Nichols of the United States District Court for the District of Columbia dismissed the Department of Justice and attorneys general of Minnesota and New York lawsuit to block UnitedHealth Group’s proposed acquisition of Change Healthcare.  The Court found that the Government failed to meet its burden of proving that the transaction is likely to substantially lessen competition in any relevant healthcare market.  United States, et al. v. UnitedHealth Group Incorporated, et al., No. 1:22-cv-0481 (D.D.C, Sep. 19, 2022).

On June 28, 2021, Judge James E. Boasberg of the United States District Court for the District of Columbia dismissed dual enforcement actions brought by the Federal Trade Commission (“FTC”) and the attorneys general of 46 states and the District of Columbia (the “state enforcers”) against Facebook, Inc. (“Facebook”).  See FTC v. Facebook, Inc., No. 1:20-cv-03590-JEB (D.D.C. June 28, 2021), ECF 73 (the “FTC Action”); State of New York et al. v. Facebook, Inc., No. 1:20-cv-03589-JEB (D.D.C. June 28, 2021), ECF 137 (the “States’ Action”).