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UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

Concurring Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson

JAB Consumer Partners SCA SICAR/SAGE Veterinary Partners, LLC, File No. 2110140

June 13, 2022

The proposed consent order announced today settles the Commission’s allegations that the 

proposed acquisition of SAGE Veterinary Partners, LLC (“SAGE”) by JAB Consumer Partners 

SCA SICAR (“JAB”), the owner of Compassion-First Pet Hospitals and NVA Parent Inc. 

(collectively, “Compassion-First/NVA”), may substantially lessen competition for individual 

specialty veterinary services and emergency veterinary services in three local markets: (i) Austin, 

TX; (ii) in and around San Francisco, CA; and (iii) in and between Oakland, Berkley, and Concord, 

CA. The proposed divestiture resolves all competitive overlaps between Compassion-First/NVA 

and SAGE in the alleged relevant markets. 

Because it does so, we voted to accept this proposed consent order for public comment. But 

we write separately to object to the Complaint’s invocation of rhetoric unrelated to competition and 

the order’s apparent predication of remedies upon both that rhetoric and the majority’s evident 

distaste for private equity as a business model, instead of the facts uncovered in the investigation.

The Complaint alleges a “growing trend towards consolidation in the emergency and 

specialty veterinary services markets across the United States in recent years by large chains”.

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That allegation, and Chair Khan’s concurrently-released statement regarding private equity as a 

business model,2 are the apparent bases for imposing broad prior approval and prior notice 

requirements on the parties.

3 Even though we found competitive problems in just the three local 

markets discussed above, we are imposing prior approval requirements across California and 

Texas, and prior notice requirements across the entire U.S. 

The “growing trend” allegation, in isolation, is not an appropriate basis for incremental 

remedies. First, our investigation revealed that the relevant competition occurs at the local level, 

driven by the distance and time that pet owners are willing to travel to obtain each relevant 

veterinary service. That is why the Complaint pleads local markets and the divestitures are

designed to resolve overlaps in three specific local areas—two across the Bay Bridge from one 

another. For competition purposes, there is no national antitrust market for emergency and 

specialty veterinary services. To the extent there is consolidation on a national level, based on what 

1 Complaint, In re JAB Consumer Partners SCA SICAR/SAGE Veterinary Partners, LLC, File No. 2110140, paragraph 

9 (June 2, 2022).

2 Commissioners Bedoya and Slaughter join the Chair in her statement.

3 The parties are in the best position to evaluate whether the benefits of a transaction and the certainty of a consent 

order outweigh the costs. So, we do not necessarily oppose consents on the grounds that they include provisions that 

are unnecessary, overly broad, and counterproductive.
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the Commission pleads in the Complaint, it is irrelevant.4 It is also not inherently concerning. Our 

review of the evidence makes clear that the bulk of emergency and specialty veterinary clinics 

nationwide are independent, with larger “aggregators” like JAB and SAGE collectively controlling 

a minority of clinics. Post-acquisition, JAB will hold fewer than 100 clinics nationwide, a 

competitively-meaningless share of the purported national market. Cf. U.S. v. Von’s Grocery Co.

384 U.S. 270 (1966). Second, we have seen no evidence that such a trend, if it exists, is bad for 

purposes of competition. That is, there are no discernible anticompetitive effects.

While untethered to any impact on competition, the allegation of the purported trend in

nationwide consolidation appears to form the sole basis in the Complaint for imposing out-ofmarket prior approval and prior notice requirements. Chair Khan’s statement also argues that the 

fact that JAB is a private equity firm requires additional remediation, but neither the Complaint nor 

the Analysis of Agreement Containing Consent Orders to Aid Public Comment—nor, in our view, 

the evidence uncovered in the investigation—indicate any reason why this fact about JAB makes 

this or any other private equity transaction more likely to raise competition concerns.5 Imposing 

heightened legal obligations on disfavored groups – including private equity – because of who they 

are rather than what they have done raises rule of law concerns.

The parties are subject to statewide prior approval in Texas and California and nationwide 

prior notice. The Commission’s Prior Approval Policy Statement (“Prior Approval Policy”) 

contemplates that the Commission might impose a prior approval requirement that covers product 

or geographic markets beyond the relevant ones affected by the merger.6 Most of the bases for 

imposing out-of-market remedies are not met here—for example, if “the relevant market alleged is 

already concentrated or has seen significant consolidation in the previous ten years” (emphasis 

added).7 The Complaint does not allege that the three relevant geographic markets here have seen 

significant consolidation.

The Chair also justifies the broad prior approval provision because JAB previously 

acquired clinics and entered into a related consent order. In that prior matter, JAB approached the 

Commission with a proposed acquisition and worked with it to resolve competitive overlaps, small 

parts of a much larger transaction.8 That process enabled the FTC to ensure that overlapping assets 

4 Chair Khan’s statement argues that our critique here is belied by “market realities.” According to the Complaint and 

the Analysis of Agreement Containing Consent Orders to Aid Public Comment voted on by this Commission, 

however, the reality of competition in the markets in question is that it is local.

5 Chair Khan’s statement points to buyouts by private equity firms that “saddle businesses with debt.” Public 

companies also sometimes choose to finance operations and acquisitions with debt. See e.g., Frances Yoon, The 

World’s Appetite for Debt Is Smashing Records, Wall St. J. (Nov. 30, 2020), https://www.wsj.com/articles/the-worldis-bingeing-on-debtand-smashing-records-11606732203. See also Franco Modigliani & Merton H. Miller, The Cost of 

Capital, Corporation Finance and The Theory of Investment, 48 Am. Econ. Rev 261 (1958).

6 Statement of the Commission on Use of Prior Approval Provisions in Merger Orders (Oct. 25, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1597894/p859900priorapprovalstatement.pdf

(hereinafter “Prior Approval Policy”). But see Dissenting Statement of Commissioners Christine S. Wilson and Noah 

Joshua Phillips Regarding the Statement of the Commission on Use of Prior Approval Provisions in Merger Orders 

(Oct. 29, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1598095/wilson_phillips_prior_approval_ dissenting 

statement 102921.pdf.

7 Prior Approval Policy, p. 2.

8 See Press Release, FTC Requires Veterinary Service Providers Compassion First and National Veterinary Associates 
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were divested to an acceptable buyer, which is critical to maintaining competition.9 The effect of 

imposing broader prior approval requirements because of such settlements will be to deter not 

mergers, but settlements. It will deter parties from submitting for agency review the complete set 

of assets subject to the deal, instead “fixing it first”: selling what they want to whom they want. 

The Commission has traditionally eschewed this approach because it reduces our ability to ensure 

the robustness of the divestiture and the quality of the buyer and because, without a consent order, 

there is no accountability should parties fail to meet their obligations. Fix-it-first transactions 

remove Commission oversight and increase the likelihood that competition will not be preserved 

and that consumers will be harmed. 

As we warned when the Commission (actually, two sitting Commissioners and a zombie 

vote) issued the ill-advised Prior Approval Policy, the broad and subjective factors enunciated in 

that policy lack limiting principles and are almost certain to lead to the routine imposition of prior 

approval provisions on geographic and product markets beyond those at issue in any given merger. 

We acknowledge that there are cases where the evidence supports the imposition of these more 

onerous remedies.10 This does not appear to be one of those cases.

We encourage comments during the public comment period regarding the statewide prior 

approval and nationwide prior notice provisions that appear in today’s consent order. In addition, 

we encourage comments on the implications of the agency’s apparent shift to an approach that 

incentivizes fix-it-firsts.

to Divest Assets in Three Local Markets (Feb. 14, 2020), https://www.ftc.gov/news-events/news/pressreleases/2020/02/ftc-requires-veterinary-service-providers-compassion-first-national-veterinary-associates-divest (The 

FTC required divestiture of 3 out of over 70 clinics operated by the parties). 

9 See e.g., The FTC’s Merger Remedies 2006-2012: A Report of the Bureaus of Competition and Economics (Jan. 

2017), https://www.ftc.gov/system/files/documents/reports/ftcs-merger-remedies-2006-2012-report-bureauscompetition-economics/p143100_ftc_merger_remedies_2006-2012.pdf. 

10 Decision, In re DaVita Inc./Total Rental Care, Inc., File No. 2110013 (Oct. 25, 2021) 

https://www.ftc.gov/system/files/documents/cases/davita_order_9_24_final.pdf (DaVita was subject to a statewide 

prior provision, requiring prior approval from the Commission before acquiring any new ownership interest in a 

dialysis clinic in Utah.).