Will the FTC Evade a String of Constitutional Attacks?

Less than two months ago, the FTC faced at least five separate lawsuits challenging the constitutionality of the agency in response to antitrust actions. Today, three of those have been settled or dismissed, and a fourth appears to be in question.  

On August 31, the FTC settled its challenge of ICE/Black Knight. On September 1, the FTC settled its challenge of Amgen/Horizon. And on October 6, the FTC dismissed its challenge of Axon/Safariland.  

Some consider the constitutional challenge in Illumina/Grail to be the most significant recent attack on the FTC. That lawsuit is pending with the Fifth Circuit after arguments were held on September 12. Across the Atlantic, on October 12 the European Commission ordered Illumina to divest Grail. The Fifth Circuit panel took notice of this development and sent a letter to counsel on October 18 asking for an update about the European Commission's order and any impact on the Fifth Circuit's case. It seems that the Fifth Circuit is questioning whether the case is moot based on the European Commission's divestiture order.   

Even if the Fifth Circuit ultimately does not determine that the lawsuit is moot, the fact that the Fifth Circuit has raised the issue is just the latest development in a string of events in which the constitutional challenges against the FTC have been resolved or questioned. One wonders to what extent this turn of events has resulted from shrewd FTC maneuvering and/or good fortune.

But it seems unlikely that the FTC will be able to evade constitutional challenges indefinitely. The parties in IQVIA/Propel Media have a pending constitutional challenge against the FTC in connection with the agency's attempt to block their merger. Many observers will be watching closely to see how that constitutional challenge plays out. And so long as the FTC continues to litigate to block mergers, parties are likely to continue to lodge constitutional attacks in response to those lawsuits.

The Fifth Circuit is asking Illumina Inc. and the Federal Trade Commission how a recent European Union order that Illumina sell off cancer detection company Grail Inc. will impact the FTC's suit challenging the $8 billion purchase.

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