DealLawyers.com Blog

For the first time in three years, the FTC issued a closing statement in connection with its HSR review of Amazon’s acquisition of One Medical. This Freshfields blog says that the FTC’s statement was “lukewarm” toward the deal, and focused on warning the parties that they must live up to their commitments concerning the use of sensitive consumer health data or face consequences. This excerpt from the blog says that the closing statement serves as a reminder that antitrust issues aren’t the only things that may raise concern at the FTC during merger review – or post-closing:

During merger reviews, authorities around the world often require demanding and extensive document productions. This enables authorities to mine companies for information not just on competition issues, but also on general market and customer interactions. While merger review is a competition-based assessment, as authorities get under the skin of an industry, privacy, consumer protection, and other regulatory issues may well be spotted and tied to the merger review process. Indeed, authorities appear to also be homing in on similar issues as they review Amazon’s acquisition of Roomba maker iRobot.

This is not a new phenomenon—some of the FTC’s high-profile privacy enforcement in the tech space related to concerns it had previously highlighted in merger closing statements. The FTC’s statement reminds the parties of this and also that it has more tools in its toolkit. Specifically, the FTC enforces, among other things, Section 5 of the Federal Trade Commission Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce” (see also our previous blog on the revival of this provision).

The FTC’s most recent statement highlights potential privacy and consumer protection concerns stemming from representations by Amazon and One Medical separately and collectively about how consumers’ personal health information would be used. These statements, according to the FTC, “constitute promises to consumers about the collection and use of their data by the post-acquisition entity”.

The blog references recent FTC enforcement proceedings challenging the alleged inappropriate use of consumer health data for advertising purposes and notes that, in the closing statement, the commissioners cautioned the companies to “make clear not only how they will use protected health information. . . but also how the integrated entity will use any One Medical patient date for purposes beyond the provision of health care.”

– John Jenkins