[Federal Register Volume 90, Number 121 (Thursday, June 26, 2025)]
[Notices]
[Pages 27304-27309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-11760]
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FEDERAL TRADE COMMISSION
[File No. 251 0049]
Omnicom Group Inc. (``Omnicom'') and The Interpublic Group of
Companies, Inc. (``IPG''); Analysis of Agreement Containing Consent
Order To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement; request for comment.
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SUMMARY: The consent agreement in this matter settles alleged
violations of Federal law prohibiting unfair methods of competition.
The attached Analysis of Proposed Consent Order to Aid Public Comment
describes both the allegations in the complaint and the terms of the
consent order--embodied in the consent agreement--that would settle
these allegations.
DATES: Comments must be received on or before July 28, 2025.
ADDRESSES: Interested parties may file comments online or on paper by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Please write: ``Omnicom/IPG;
[[Page 27305]]
File No. 251 0049'' on your comment and file your comment online at
https://www.regulations.gov by following the instructions on the web-
based form. If you prefer to file your comment on paper, please mail
your comment by overnight service to the following address: Federal
Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW,
Mail Stop H-144 (Annex F), Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Kelse Moen (202-326-3373), Bureau of
Competition, Federal Trade Commission, 600 Pennsylvania Avenue NW,
Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule Sec. 2.34, 16 CFR
2.34, notice is hereby given that the above-captioned consent agreement
containing a consent order to cease and desist, having been filed with
and accepted, subject to final approval, by the Commission, has been
placed on the public record for a period of 30 days. The following
Analysis of Agreement Containing Consent Order to Aid Public Comment
describes the terms of the consent agreement and the allegations in the
complaint. An electronic copy of the full text of the consent agreement
package can be obtained from the FTC website at this web address:
https://www.ftc.gov/news-events/commission-actions.
The public is invited to submit comments on this document. For the
Commission to consider your comment, we must receive it on or before
July 28, 2025. Write ``Omnicom/IPG; File No. 251 0049'' on your
comment. Your comment--including your name and your State--will be
placed on the public record of this proceeding, including, to the
extent practicable, on the https://www.regulations.gov website.
Because of the agency's heightened security screening, postal mail
addressed to the Commission will be delayed. We strongly encourage you
to submit your comments online through the https://www.regulations.gov
website. If you prefer to file your comment on paper, write ``Omnicom/
IPG; File No. 251 0049'' on your comment and on the envelope, and mail
your comment by overnight service to: Federal Trade Commission, Office
of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144 (Annex
F), Washington, DC 20580.
Because your comment will be placed on the publicly accessible
website at https://www.regulations.gov, you are solely responsible for
making sure your comment does not include any sensitive or confidential
information. In particular, your comment should not include sensitive
personal information, such as your or anyone else's Social Security
number; date of birth; driver's license number or other State
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. You are also
solely responsible for making sure your comment does not include
sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule Sec.
4.10(a)(2), 16 CFR 4.10(a)(2)--including competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule Sec. 4.9(c). In
particular, the written request for confidential treatment that
accompanies the comment must include the factual and legal basis for
the request and must identify the specific portions of the comment to
be withheld from the public record. See FTC Rule Sec. 4.9(c). Your
comment will be kept confidential only if the General Counsel grants
your request in accordance with the law and the public interest. Once
your comment has been posted on https://www.regulations.gov--as legally
required by FTC Rule Sec. 4.9(b)--we cannot redact or remove your
comment from that website, unless you submit a confidentiality request
that meets the requirements for such treatment under FTC Rule Sec.
4.9(c), and the General Counsel grants that request.
Visit the FTC website at https://www.ftc.gov to read this document
and the news release describing this matter. The FTC Act and other laws
the Commission administers permit the collection of public comments to
consider and use in this proceeding, as appropriate. The Commission
will consider all timely and responsive public comments it receives on
or before July 28, 2025. For information on the Commission's privacy
policy, including routine uses permitted by the Privacy Act, see
https://www.ftc.gov/site-information/privacy-policy.
Analysis of Agreement Containing Consent Order To Aid Public Comment
I. Introduction
The Federal Trade Commission (``Commission'') has accepted, subject
to final approval, an Agreement Containing Consent Orders (``Consent
Agreement'') from Omnicom Group, Inc. (``Omnicom'') designed to remedy
the anticompetitive effects resulting from Omnicom's proposed
acquisition of The Interpublic Group of Companies (``IPG''). Under the
terms of the proposed Consent Agreement, Omnicom is prohibited from
entering or attempting to enter into any agreement with any third party
that hinders advertising based on political or ideological viewpoints
and to cooperate with any FTC investigation or litigation relating to
media buying services.
The proposed Consent Agreement has been placed on the public record
for thirty days for receipt of comments by interested persons. Comments
received during this period will become part of the public record.
After thirty days, the Commission will review the comments received and
decide whether it should withdraw, modify, or make the Consent
Agreement final.
Under the terms of the Agreement and Plan of Merger dated December
8, 2024, Omnicom will acquire IPG in exchange for $13.5 billion (the
``Acquisition''). The Commission's Complaint alleges the proposed
Acquisition, if consummated, would violate section 7 of the Clayton
Act, as amended, 15 U.S.C. 18, and section 5 of the Federal Trade
Commission Act, as amended, 15 U.S.C. 45, by substantially lessening
competition or tending to create a monopoly in the relevant market for
media buying services. The proposed Consent Agreement will remedy the
alleged violations by preserving the competition that otherwise would
be lost in these markets as a result of the proposed Acquisition and
eliminates Omnicom's ability to participate in any ongoing or future
coordination in the market based on political or ideological
viewpoints.
II. The Parties
Headquartered in New York, New York, Omnicom is the parent company
of Omnicom Media Group and a network of creative advertising agencies,
including BBDO, DDB, TBWA, and the DAS Group of Companies. Omnicom
offers additional services, such as public relations, through other
subsidiaries.
IPG is a global advertising agency headquartered in New York, New
York. IPG is the parent company of IPG Mediabrands and several creative
[[Page 27306]]
advertising agencies, most notably McCann Worldgroup and MullenLowe.
IPG offers additional services, such as public relations, sports
marketing, and talent representation, through other subsidiaries.
III. Relevant Product and Market Structure
Advertising agencies, such as Omnicom and IPG, provide a variety of
marketing services to advertising entities. As part of these services,
advertising agencies negotiate media purchases of advertising inventory
across many types of media and make purchases on behalf of, or for
later resale to, customers or potential customers (advertisers). There
are currently six major global advertising holding companies
(``holdcos''): Publicis, WPP, Omnicom, IPG, Dentsu, and Havas.
Advertising holdcos are conglomerates of acquired independent agencies.
Advertising agencies' two primary services are creative advertising
(e.g., slogans, branding, visual designs, commercial) and media buying
(e.g., negotiating with television networks to place advertisements at
primetime or buying search ads on Google). Media buying agencies, such
as Omnicom's Hearts & Science, represent advertisers in negotiations
with media publishers, such as television broadcasters, print, radio,
and digital advertisers. The media buying agency negotiates pricing, ad
placement, sponsorships, exclusives, and other terms and conditions on
behalf of the advertiser. With its advertiser client's input, the media
buying agency will also typically prepare a media buying plan to
determine where the advertiser will seek to place advertisements
The market for media buying services in the United States is
concentrated due to the historical significance of agency scale in
media buying negotiations. Because advertisers tend to view a certain
threshold scale as necessary to achieve favorable results in
negotiations with media publishers, advertisers seek larger media
buying agencies to represent them during media buying negotiations. For
global advertisers seeking to reach customers in the United States, the
six holdcos possess the scale these advertisers seek to aid their
negotiations with media publishers, especially non-digital publishers.
Each advertiser typically contracts with a single holdco to handle its
media buying needs in the United States.
IV. Competitive Effects of the Acquisition
This market is characterized by a history of coordination. Major
advertisers have discussed and ultimately declined to advertise on
certain websites and applications. These decisions appear to have been
coordinated through one or more associations of advertising industry
players, including ad agencies.
A coordinated refusal to deal among media buying services firms
provides a direct economic benefit to those firms by ensuring they are
not competitively disadvantaged when they decline the opportunity to
reach potential audiences on boycotted platforms. These actions can
have harmful downstream economic effects on media publishers that need
access to advertising and associated revenue. They also harm media
consumers, who are deprived of the viewpoints of publishers forced to
scale back or eliminate their products due to lack of revenue.
Coordination may further distort the advertising market by artificially
restricting ad placement and raising the cost of advertising space that
is not boycotted.
The proposed acquisition will cause the remaining competitors to
face fewer impediments to furthering and refining the ongoing
coordination of placement of advertisements, monitoring any coordinated
refusal, and punishing one another for taking actions that disrupt
their coordination. The potential for such coordination is increasingly
difficult to address if market structure is allowed to consolidate
through merger.
V. Entry Conditions
De novo entry in the relevant markets would not be timely, likely,
or sufficient in magnitude, character, and scope to deter or counteract
the anticompetitive effects of the proposed acquisition. Respondents
and the other holdcos have dozens of offices across the globe, hundreds
of advertiser clients, longstanding relationships with media
publishers, and manage multi-billion-dollar portfolios of media spend
that would be difficult for any competitor to replicate via entry or
expansion.
VI. The Consent Agreement
The proposed Consent Agreement effectively remedies the competitive
concerns raised by the Proposed Acquisition. Pursuant to the proposed
Consent Agreement, the merged firm would be required to refrain from
taking actions that would create or further coordination between
Omnicom and any other media buyer. Specifically, Omnicom is barred
from, unilaterally or in concert with other companies:
(1) directing, because of the political or ideological viewpoints
of a Media Publisher or the content running alongside that publisher's
advertising inventory, its customers' advertising spend towards or away
from that Media Publisher;
(2) refusing, because of the political or ideological viewpoints or
political content of a Media Publisher, an advertising customer's
request to direct advertising to that Media Publisher;
(3) refusing, because of an Advertiser's political or ideological
viewpoints, to accept that Advertiser as a customer;
(4) creating, proposing, or using ``exclusion lists,'' whatever the
source, that differentiate between Media Publishers on the basis of
political or ideological viewpoints to determine or direct advertisers
advertising placements.
The proposed Consent Agreement provides that none of these
prohibitions shall inhibit Omnicom from acting as an agent to carry out
the independent wishes of each of its advertising customers.
Advertising customers that have specific preferences about which Media
Publishers their ads may be placed with may still express those
preferences to Omnicom, and Omnicom may carry them out. If an
Advertising customer, on its own initiative, wishes to design an
exclusion list of its own, Omnicom may implement that exclusion list.
The proposed Consent Agreement also contains provisions to help
ensure Omnicom complies with its obligations. It contains appropriate
reporting, notice and access requirements, and obligates Omnicom to
cooperate with the Commission in any investigation relating to the same
industry or Omnicom's compliance with the proposed Consent Agreement.
The proposed Consent Agreement has a term of ten years.
The purpose of this analysis is to facilitate public comment on the
Consent Agreement and proposed Consent Agreement to aid the Commission
in determining whether it should make the proposed Consent Agreement
final. This analysis is not an official interpretation of the proposed
Consent Agreement and does not modify its terms in any way.
[[Page 27307]]
By direction of the Commission, Commissioner Meador recused.
April J. Tabor,
Secretary.
Statement of Chairman Andrew N. Ferguson
The Commission today authorizes the filing of an administrative
complaint and proposed decision and order requiring Omnicom Group Inc.
(``Omnicom'') and The Interpublic Group of Companies, Inc. (``IPG'') to
refrain from practices that damage competition in the media-buying
services market post-merger. Omnicom is the third-largest provider of
media buying services by revenue, and IPG is the fourth-largest.\1\ The
merger would increase concentration in this market and risk competitive
harm.\2\ Without the commitments obtained by the Commission, I have
reason to believe the effect of Omnicom's proposed acquisition of IPG
``may be substantially to lessen competition.'' \3\
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\1\ Complaint ] 11, In the Matter of Omnicom Group and The
Interpublic Group of Cos., Matter No. 2510049 (``Complaint'').
\2\ Id. ] 13; see also Omnicom to Acquire Interpublic in Deal
that Will Reshape Advertising Industry, Wall St. J. (Dec. 9, 2024),
https://www.wsj.com/business/media/omnicom-to-acquire-interpublic-group-in-deal-that-will-reshape-advertising-industry-eed6f1b3.
\3\ 15 U.S.C. 18.
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Omnicom and IPG are two of the six major global advertising holding
companies (``holdcos'').\4\ These advertising holdcos are conglomerates
of various advertising agencies acquired over time.\5\ Advertising
agencies play an essential role in linking advertisers with media
publishers, including television networks, print publications,
websites, and social media platforms.\6\ Advertisers understandably do
not necessarily possess the in-house expertise to determine where their
advertisements should be placed. They therefore hire advertising
agencies not only to make many of these decisions for them, but also to
represent advertisers in negotiations with media publishers on key
terms such as pricing, ad placement, sponsorships, and exclusives.\7\
In serving this role, the advertising agencies hold great influence
over where advertisers market their products and spend their
advertising dollars. The advertising agencies' decisions then are
critical to the success and failure of publishers: most publishers
would not be economically viable without sufficient advertising
revenue. This impact is not limited to behemoth publishers like
television networks, social-media platforms, and major websites. It
also includes thousands of small, independent publishers who serve
important, unique consumer needs, and are vital to the free exchange of
ideas.
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\4\ Complaint ]] 6, 12.
\5\ Id. ] 6.
\6\ Id. ] 7.
\7\ Ibid.
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Advertising agencies compete on many dimensions, including in the
market no broader than media-buying services.\8\ ``Media-buying
services'' refers to the purchase of advertising space from publishers
for or on behalf of advertisers.\9\ Historically, agencies needed scale
to achieve favorable results in negotiations with publishers,
encouraging consolidation in the market to today's so-called ``Big
Six.'' \10\
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\8\ Id. ] 9.
\9\ Ibid.
\10\ Id. ]] 8, 12.
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Omnicom's proposed acquisition of IPG would consolidate the media-
buying services market even further. It would bring together the third-
and fourth-largest companies in this market to form a new number one,
while reducing the number of significant competitors from six to
five.\11\ As a result, concentration in this market would increase. One
of the great dangers of mergers such as this one is they increase the
risk of collusion among the remaining firms, which can lead to higher
prices, reduced output, and other actions that harm consumers such as
degraded quality.\12\ This risk is what is often referred to as
``coordinated effects''--a merger leads to reduced competition not
because of a single firm's unilateral actions, but because a group of
firms coordinate their behavior in anticompetitive ways.\13\
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\11\ Id. ]] 11, 13.
\12\ Phillip Areeda & Herbert Hovenkamp, Antitrust Law: An
Analysis of Antitrust Principles and Their Application ] 916 (rev.
ed. 2024) (``Areeda & Hovenkamp'') (``Today the most orthodox and
probably the commonly asserted rationale for challenging mergers is
that under appropriate circumstances they can facilitate express
collusion or oligopoly interaction among the various firms in the
post-merger market, including both those that participated in the
merger and those that did not.''); see also Brooke Grp. Ltd. v.
Brown & Williamson Tobacco Corp., 509 U.S. 209, 229-30 (1993) (``In
the Sec. 7 context, it has long been settled that excessive
concentration, and the oligopolistic price coordination it portends,
may be the injury to competition the Act prohibits.'').
\13\ Complaint ] 15.
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The rationale for this longstanding concern about the increased
risk of coordinated effects from higher concentration is
straightforward. The ease of coordination is inversely related to the
number of firms in a market. Collusion and coordination are easier in
concentrated markets with few participants than in unconcentrated
markets with many participants. Collusion, of course, is ``the supreme
evil of antitrust.'' \14\ Section 7 of the Clayton Act therefore
prohibits mergers that ``create an appreciable danger of collusive
practices in the future.'' \15\ Decades-old precedent establishes that
a merger that reduces the number of competitors from six to five, like
this one, can, in some circumstances, suffice to establish a section 7
violation.\16\ That is not to say a six-to-five merger always violates
section 7. This precedent merely establishes that increased
consolidation raises antitrust concerns, and the reduction of a market
from six to five competitors increases the risk of collusion in that
market. Leading antitrust scholars across the spectrum have similarly
identified mergers that increased the risks of coordinated effects as
suspect.\17\ And the antitrust agencies' joint merger guidelines dating
back to 1992 have uniformly declared that a merger which increases the
risk of coordination can violate section 7.\18\
[[Page 27308]]
The 2023 Merger Guidelines' similar declaration that ``[m]ergers can
violate the law when they increase the risk of coordination,'' then
reiterates what decades of precedent, scholarship, and previous
guidelines have long pronounced.\19\
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\14\ Verizon Commc'ns v. Law Offs. of Curtis V. Trinko, 540 U.S.
398, 408 (2004).
\15\ FTC v. H.J. Heinz Co., 246 F.3d 708, 719 (D.C. Cir. 2001)
(cleaned up).
\16\ FTC v. Elders Grain, Inc., 868 F.2d 901, 905 (7th Cir.
1989) (Posner, J.) (affirming preliminary injunction and explaining
that ``[t]he supply of industrial dry corn was already highly
concentrated before the acquisition, with only six firms of any
significance. The acquisition has reduced that number to five. This
will make it easier for leading members of the industry to collude
on price and output. . . .'').
\17\ See Hosp. Corp. of Am. v. FTC, 807 F.2d 1381, 1386 (7th
Cir. 1986) (Posner, J.) (``When an economic approach is taken in a
section 7 case, the ultimate issue is whether the challenged
acquisition is likely to facilitate collusion.''); D. Daniel Sokol &
Sean P. Sullivan, The Decline of Coordinated Effects Enforcement and
How to Reverse It, 76 Fla. L. Rev. 265, 268, and 271 (2024) (``The
greatest threat today is . . . oligopoly power: the ability of a few
competitors to do by coordinated conduct the same things a
monopolist would do.''; ``The need for vigilance against coordinated
effects in merger review is a point upon which opposing philosophies
have found common ground.'') (emphasis in original); Herbert
Hovenkamp, Prophylactic Merger Policy, 70 Hastings L.J. 45, 51-55
(2018).
\18\ Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger
Guidelines section 2.1 (April 2, 1992) (``It is likely that market
conditions are conducive to coordinated interaction when the firms
in the market previously have engaged in express collusion and when
the salient characteristics of the market have not changed
appreciably since the most recent such incident.'') (``1992 Merger
Guidelines''); Dep't of Justice & Fed. Trade Comm'n, Horizontal
Merger Guidelines section 2.1 (Apr. 8, 1997) (same); Dep't of
Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines section
7.2 (Aug. 19, 2010) (``The Agencies presume that market conditions
are conducive to coordinated interaction if firms representing a
substantial share in the relevant market appear to have previously
engaged in express collusion affecting the relevant market, unless
competitive conditions in the market have since changed
significantly. . . . Previous collusion or attempted collusion in
another product market may also be given substantial weight if the
salient characteristics of that other market at the time of the
collusion are closely comparable to those in the relevant
market.''). The Department of Justice's 1982 Merger Guidelines
likewise already declared that ``Where only a few firms account for
most of the sales of a product, those firms can in some
circumstances coordinate, explicitly or implicitly, their actions in
order to approximate the performance of a monopolist.'' Dep't of
Justice, Merger Guidelines Part I (June 14, 1982) (``1982 DOJ Merger
Guidelines'').
\19\ Dep't. of Justice & Fed. Trade Comm'n, Merger Guidelines at
2.3 (Dec. 18, 2023) (``2023 Merger Guidelines'').
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One factor courts, scholars, and the antitrust agencies have long
considered in evaluating the risk of coordinated effects resulting from
a merger is whether there is a history of actual or attempted collusion
in the industry at issue.\20\ A history of collusion, explicit or
tacit, demonstrates firms have been willing and able to coordinate
their actions in the past, making it more likely they will do so again
after a merger, particularly if the merger changes market structure in
a way that favors further coordination. The Commission must
``investigate whether facts suggest a greater risk of coordination than
market structure alone would suggest.'' \21\
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\20\ FTC v. RAG-Stiftung, 436 F. Supp. 3d 278, 313 (D.D.C. 2020)
(citing and quoting discussion of past collusion in an industry from
section 7.1 of the antitrust agencies' 2010 Horizontal Merger
Guidelines in addressing market vulnerability to coordination); New
York v. Deutsche Telekom AG, 439 F. Supp. 3d 179, 234 (S.D.N.Y.
2020) (similar); 2023 Merger Guidelines section 2.3A (outlining
three ``primary factors'' for assessing the increased risk of
coordination--(1) the existence of a highly concentrated market, (2)
prior actual or attempted attempts to coordinate, and (3)
elimination of a maverick.); 1992 Merger Guidelines section 2.1
(recognizing that past collusion in an industry can be one of the
factors giving rise to concerns that following a merger, the
remaining firms may coordinate activities); 1982 DOJ Merger
Guidelines Part III (``The Department is more likely to challenge a
merger in the following circumstances: [ ] Firms in the market
previously have been found to have engaged in horizontal collusion
regarding price, territories, or customers, and the characteristics
of the market have not changed appreciably since the most recent
finding'').
\21\ 2023 Merger Guidelines at 3.
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Here, the Complaint alleges such a history of market participants
coordinating their conduct. In recent years, the advertising industry
has been plagued by deliberate, coordinated efforts to steer ad revenue
away from certain news organizations, media outlets, and social media
networks.\22\ This type of coordination risks America's largest
companies' economic weight unwittingly being enlisted for the political
and ideological aims of certain advertising industry groups and
political activists who in turn avoid the costs they would incur if
they merely refused to deal on their own.\23\ Indeed, a Congressional
investigation \24\ concluded the World Federation of Advertisers'
Global Alliance for Responsible Media (``GARM'') banded together the
most powerful firms in their industry to choke off the vital
advertising revenue of those who disagreed with them, disseminated
information they believed untrue, or refused to deplatform those who
did.\25\ The World Federation of Advertisers' members, which include
Omnicom and IPG, account for roughly 90 percent of global advertising
spending.\26\ Both Omnicom and IPG also are founding members of
GARM.\27\
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\22\ Complaint ]] 17-18, 20; see also The mysterious group
that's picking Breitbart apart, one tweet at a time, Wash. Post
(Sept. 22, 2017), https://www.washingtonpost.com/lifestyle/style/the-mysterious-group-thats-picking-breitbart-apart-one-tweet-at-a-time/2017/09/22/df1ee0c0-9d5c-11e7-9083-fbfddf6804c2_story.html; 20-
Plus Brands Have Stopped Advertising on Tucker Carlson Tonight After
Immigration Comments, Ad Week (Dec. 20, 2018), https://www.adweek.com/convergent-tv/20-plus-brands-have-stopped-advertising-on-tucker-carlson-tonight-after-immigration-comments/;
Snapchat And Pinterest Benefited From The Facebook Boycott--But Can
They Keep It Going?, Ad Exchanger (Feb. 9, 2021), https://www.adexchanger.com/social-media/snapchat-and-pinterest-benefited-from-the-facebook-boycott-but-can-they-keep-it-going/; Advertisers
continue to flee Twitter as civil rights groups call for a boycott,
Engadget (Nov. 4, 2022), https://www.engadget.com/twitter-losing-advertisers-boycott-193748977.html.
\23\ Complaint ] 21.
\24\ Interim Staff Report of the Comm. on the Judiciary U.S.
House of Representatives, GARM's Harm: How the World's Biggest
Brands Seek to Control Online Speech (July 10, 2024) (``Interim
Staff Report'').
\25\ Complaint ] 18.
\26\ Ibid.
\27\ Global Alliance for Responsible Media Launches to Address
Digital Safety, World Federation of Advertisers (June 18, 2019),
https://wfanet.org/knowledge/item/2019/06/18/Global-Alliance-for-Responsible-Media-launches-to-address-digital-safety.
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GARM has disbanded under a cloud of litigation and congressional
investigation.\28\ The Commission has not been a party to those
actions, and I take no position on any possible violation of the
antitrust laws by GARM. The factual allegations, however, if true,
paint a troubling picture of a history of coordination--that the group
sought to marshal its members into collective boycotts to destroy
publishers of content of which they disapproved.\29\
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\28\ Complaint ] 19; see also Statement on the Global Alliance
for Responsible Media (GARM), World Federation of Advertisers (Aug.
9, 2024), https://wfanet.org/leadership/garm/about-garm (``[R]ecent
allegations that unfortunately misconstrue [GARM's] purpose and
activities have caused a distraction and significantly drained its
resources and finances. WFA therefore is making the difficult
decision to discontinue GARM activities.'').
\29\ See, e.g., Interim Staff Report at 17, 25, 33 (alleging
efforts by GARM to drive advertisers away from popular media
personalities like Joe Rogan, harm news outlets that reported
stories GARM leaders felt were untrue, and coordinate with
government agencies to decide which information should be excised
from public discourse).
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Pre-closing merger analysis is necessarily a prediction of the
likelihood the risks posed by a merger will come to pass.\30\ When
participants in the industry of a proposed merger have a history of
actual or attempted collusion, like alleged for the instant
transaction, the Commission must be particularly vigilant.\31\ In a
market like advertising, where we are presented not only with
increasing concentration in the relevant market, but also a troubling
history of collusion to the detriment of consumers and the free conduct
of American political discourse and elections, that duty is especially
pressing.\32\
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\30\ Brown Shoe Co. v. United States, 370 U.S. 294, 332-33
(1962) (a court must ``predict the probable future consequences of
this merger.'').
\31\ Complaint ] 16.
\32\ Id. ]] 19-22.
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GARM was neither the beginning nor the end of harmful and
potentially unlawful collusion in this industry.\33\ Numerous other
industry groups and private organizations have publicly sought to use
the chokepoint of the advertising industry to effect political or
ideological goals.\34\ Clandestine pressure campaigns and private
dealings among these parties are less well documented but pose the
serious risk of harm and illegality. The evidence in this case gives me
sufficient ``reason to believe'' \35\ that, in the absence of any
intervention, the proposed acquisition is likely to substantially
reduce competition and may enhance the vulnerability to coordinated
effects that already exists in this particular industry. The history
relayed above convinces me that likelihood is of serious concern to the
American public.
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\33\ Id. ] 19.
\34\ See Interim Staff Report of the H. Comm. on Small Business,
Small Business: Instruments and Casualties of the Censorship-
Industrial Complex 42 (Sept. 10, 2024), https://smallbusiness.house.gov/uploadedfiles/house_committee_on_small_business_cic_report_september_2024.pdf
(describing NewsGuard and other organizations' steering of
advertising revenue with ``an unavoidable partisan lens.'').
\35\ 15 U.S.C. 45(b); see also FTC v. Standard Oil Co. of Cal.,
449 U.S. 232, 241 (1980); Boise Cascade Corp. v. FTC, 498 F. Supp.
772, 779 (D. Del. 1980).
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As already highlighted, the Commission, in reviewing a merger that
effects an increase in concentration, is always duty-bound to address
the risk of
[[Page 27309]]
collusion.\36\ As a leading antirust treatise makes clear, ``evidence
of historical attempts at collusion or evidence that collusion is
actually occurring in the present could be considered as `exacerbating'
factors sufficient to warrant a merger challenge under circumstances
where structural evidence alone would be insufficient.'' \37\ Evidence
of past collusion or attempted collusion has played a key role in
judicial decisions enjoining mergers under section 7 for many years
before the Commission adopted the 2023 Guidelines.\38\ And in
negotiating settlements, the Commission may impose stringent remedies
based on past collusion in the industry.\39\
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\36\ Antitrust Law Developments 375 (9th ed. 2022) (``a major
goal of the merger laws is to prevent markets from consolidating
sufficiently to create or enhance the conditions that permit firms
to engage in coordinated interaction''); Complaint ] 15.
\37\ Areeda & Hovenkamp ] 917.
\38\ See, e.g., FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34,
65 (D.D.C. 1998) (``Although the Court is not convinced from the
record that the Defendants actually engaged in wrongdoing, it is
persuaded that in the event of a merger, the Defendants would likely
have an increased ability to coordinate their pricing practices.'').
\39\ See Opinion of the Commission, In re Coca-Cola Co., 117
F.T.C. 903, 946 (June 13, 1994).
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In this case, to resolve the Commission's concerns, the parties
have proposed a remedy in the form of conduct restrictions that will
mitigate this merger's anticompetitive effects. The history of
collusion in the market for media-buying services, and the increased
potential for collusion post-merger, make this a rare instance where
the imposition of a behavioral remedy is appropriate.
Specifically, the proposed decision and order prohibits Omnicom and
IPG from entering into or maintaining any agreement or practice that
would steer advertising dollars away from publishers based on their
political or ideological viewpoints. To be sure, coordinated action by
advertising agencies against politically disfavored publishers is
tantamount to an agreement not to compete on quality--but obtaining
such a ruling in litigation could take years. Today's decision and
order eliminates the potential for costly litigation while ensuring
that Omnicom and IPG abide by the antitrust laws post-merger.
Unlike many conduct remedies, the Commission is well prepared to
monitor the ones imposed here. As I pointed out last month, one flaw of
conduct remedies is that they can sometimes be difficult to monitor or
enforce.\40\ Here, however, the Commission can monitor Omnicom's and
IPG's compliance. Collusion in the advertising industry remains the
subject of active investigations.\41\ Any future attempts at collusion
by Omnicom and IPG are unlikely to remain hidden. Compliance reporting
provisions will give the Commission insight into the merged firm's
activities. Likewise, advertisement publishers have a powerful
incentive to alert the Commission if they believe that they are the
object of unlawful collusion. Moreover, this Agreement requires Omnicom
and IPG to cooperate with the Commission in any investigation relating
to media-buying services \42\--and I have already noted that
investigating and policing censorship practices that run afoul of the
antitrust laws is a top priority of the Trump-Vance FTC.\43\
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\40\ Statement of Chairman Andrew N. Ferguson, Joined by Comm'r
Melissa Holyoak and Comm'r Mark R. Meador, In the Matter of
Synopsys, Inc./Ansys, Inc., Matter No. 2410059, at 7 (May 28, 2025).
\41\ See, e.g., Press Release, Attorney General Ken Paxton Opens
Investigation Into Possible Conspiracy by Advertising Companies to
Boycott Certain Social Media Platforms (Nov. 21, 2024), https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-opens-investigation-possible-conspiracy-advertising-companies-boycott.
\42\ Decision and Order, In the Matter of Omnicom Group, Inc.
and The Interpublic Group of Companies, Inc., Matter No. 2510049,
Part VI (``Decision and Order'').
\43\ Testimony of Chairman Andrew N. Ferguson before the H.
Comm. on Appropriations, Subcomm. on Financial Services and General
Government, at 26 (May 15, 2025).
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Today's settlement does not limit either advertisers' or marketing
companies' constitutionally protected right to free speech--the same
freedom that the head of GARM, the organization that Omnicom and IPG
founded, once described as an ``extreme global interpretation of the US
Constitution'' and `` `principles for governance' . . . from 230 years
ago (made by white men exclusively).'' \44\ The decree goes to great
lengths to avoid interfering with the free, regular course of business
between marketing firms and their customers. Omnicom-IPG may choose
with whom it does business and follow any lawful instruction from its
customers as to where and how to advertise.\45\ No one will be forced
to have their brand or their ads appear in venues and among content
they do not wish. The prohibited behavior is limited to ``the supreme
evil of antitrust''--collusion with other firms and the creation of
pre-made ``exclusion lists'' to encourage advertisers to join de facto
boycotts coordinated by advertising firms and other third parties.\46\
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\44\ Interim Staff Report at 2.
\45\ Decision and Order, Part II.
\46\ Ibid.
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Today, Omnicom and IPG have committed themselves to help stop that
sort of coordination in their industry. This consent agreement will
help mitigate the dangers inherent in a consolidated national
advertising market. I hope the conditions imposed on this merger will
encourage all advertising firms to adopt similar practices and thereby
reduce the temptation to collude to the detriment of their customers,
independent journalists, small and independent media companies,
consumers, and the American public square.
[FR Doc. 2025-11760 Filed 6-25-25; 8:45 am]
BILLING CODE 6750-01-P