Antitrust

The 2024 Corporate Rap Sheet

My colleagues and I collected more than 22,000 new entries for the U.S. version of Violation Tracker this year. We also launched Violation Tracker Global, which contains cases brought against large corporations in 52 countries. Here are some of the most notable cases of the year from both databases.

McKinsey and Opioids. McKinsey, the leading management consulting firm, had to pay $650 million in criminal and civil penalties to resolve a U.S. Justice Department (DOJ) case concerning its work for the disgraced pharmaceutical company Purdue Pharma. McKinsey was charged with conspiring with Purdue to “turbocharge” sales of OxyContin while misleading users about the addiction risks of the opioid.

TD Bank and Money Laundering. TD Bank N.A., a U.S. subsidiary of Canada’s Toronto-Dominion, pleaded guilty and agreed to pay $1.9 billion in fines and forfeiture to resolve DOJ charges that it violated the Bank Secrecy Act by failing to file reports on suspicious transactions and thereby facilitated money laundering by criminal networks.

BHP, Vale and a Mining Disaster. Mining giants BHP and Vale, co-owners of the Samarco joint venture, agreed to a US$31 billion settlement to resolve litigation brought by Brazilian communities destroyed by the 2015 Mariana mine-waste dam collapse that killed 19 people and polluted 400 miles of rivers.

Raytheon and Fraud and Bribery. Raytheon Company, a subsidiary of military contractor RTX (formerly known as Raytheon Technologies), agreed to pay over $950 million to resolve a DOJ criminal investigation into a major fraud scheme involving defective pricing on certain government contracts and violations of the Foreign Corrupt Practices Act and the Arms Export Control Act.

3M and PFAS. A federal judge in South Carolina gave final approval to a class action settlement in which 3M agreed to pay an estimated $12.5 billion to more than 10,000 public water systems to resolve allegations that PFAS chemicals produced by the company for use in firefighting foam ended up contaminating water sources.

Apple and Improper Tax Breaks. The European Commission ordered Apple to repay 13 billion euros to Ireland after determining that the special tax breaks the company had been receiving for 16 years amounted to a form of illegitimate state aid.

Meta Platforms and Biometric Data. Facebook parent Meta Platforms agreed to pay $1.4 billion to the Texas Attorney General’s office to settle a lawsuit alleging it improperly captured biometric data from millions of users for its facial recognition system without the authorization required by state law.

Teva Pharmaceuticals and Copaxone. The European Commission fined Teva 462 million euros for abusing its dominant position to delay competition to Copaxone, its medication for the treatment of multiple sclerosis. The Commission found that Teva artificially extended the patent protection of Copaxone and systematically spread misleading information about a competing product to hinder its market entry and uptake.

Uber Technologies and Wage Theft. Uber paid $148 million to settle a case brought by the Massachusetts Attorney General alleging that it violated state wage and hour law in the way it paid its drivers. The agreement also required the company to begin paying a minimum wage of $32.50 an hour and providing benefits such as paid sick leave. The case also targeted Lyft, which paid $27 million.

Glencore and Bribery. The Office of the Attorney General of Switzerland ordered commodities trading company Glencore to pay a penalty equal to about $152 million for failing to take steps to prevent the bribery of government officials in the Democratic Republic of Congo by a business partner.

Walgreens and False Claims. Walgreens Boots Alliance Inc. and Walgreen Co. agreed to pay $106 million to the DOJ to resolve alleged violations of the False Claims Act and state statutes for billing government health care programs for prescriptions never dispensed.

Veolia and a Workplace Death. A British subsidiary of France’s Veolia Group pleaded guilty to breaching the Health and Safety at Work Act after a worker died and another was seriously injured while decommissioning a North Sea gas rig. The Health and Safety Executive fined the company £3 million and ordered it to pay £60,000 in costs.

Goldman Sachs and Apple Card Users. The U.S. Consumer Financial Protection Bureau ordered Goldman Sachs to pay $64 million in fines and redress for mishandling customer service breakdowns affecting thousands of Apple Card holders. These failures meant that consumers faced long waits to get money back for disputed charges and some had incorrect negative information added to their credit reports.

You can find many more examples of the year’s corporate scandals in Violation Tracker and Violation Tracker Global. There is every reason to believe there will be many more cases for the Trackers to document in the coming year.

The Corporate Lawbreakers Involved in the Port Labor Dispute

The decision by the International Longshoremen’s Association to strike ports on the East and Gulf Coasts has prompted numerous media outlets to produce unflattering stories about union president Harold Daggett and what is depicted as his lavish lifestyle.

I have not seen much reporting on the ILA’s adversaries—the corporate members of the employer group known as the United States Maritime Alliance. The group’s website lists about 40 members, among which are some of the largest multinational shipping corporations and terminal operators in the world.

These companies have become more familiar to me as I have been gathering data for the new Violation Tracker Global database, which my colleagues and I will release soon. USMA members show up frequently in data from regulatory agencies in various countries. Here is a preview of what Violation Tracker Global will reveal about these shippers.

One of the USMA members is an American subsidiary of Norway’s Wallenius Wilhelmsen Group. Since 2010, units of the shipping company have racked up regulatory penalties equal to more than US$440 million. Most of these were for anti-competitive practices. The biggest case was a $256 million penalty imposed by the European Commission in 2018 for participating in an illegal cartel controlling the market for vehicle shipping. Wallenius Wilhelmsen has also been fined in Australia, Brazil, China, Japan, Mexico, South Africa, South Korea and the United States.

Another USMA member is a unit of Japan’s Kawasaki Kisen Kaisha, known as K Line. Since 2010, K Line has been penalized more than $240 million for similar anti-competitive practices. The largest case was a $67 million criminal fine imposed by the U.S. Justice Department for participation in a conspiracy to fix prices, allocate customers, and rig bids for shipping services for roll-on, roll-off cargo, such as cars and trucks. K Line has also been fined in Australia, Canada, Chile, China, India, Italy, Japan, Mexico, Singapore, South Africa, and South Korea.

One of the biggest USMA members is Denmark’s Maersk, which participates directly and through its subsidiaries APM Terminals and Hamburg Sud. Since 2010, Maersk and all its subsidiaries have racked up about $45 million in penalties. The largest portion of that was a 2012 U.S. case in which Maersk Line Limited had to pay the federal government $31.9 million to resolve allegations that it submitted false claims in connection with contracts to transport cargo in shipping containers to support U.S. troops in Afghanistan and Iraq. Among other things, Maersk units were fined by Russian authorities for anti-competitive practices and by British authorities for an offshore oil spill.

Also on the membership list is CSAV, a Chilean shipping company whose fines in Violation Tracker Global amount to $25 million. Those include competition cases brought by the European Commission and in China, Italy, Mexico, South Africa, South Korea, and the United States. France’s CMA CGA has total fines of just under $25 million. It was also fined by the European Commission and in Brazil, France, Italy, the United Kingdom, and the United States.

Opponents of the ILA are arguing that the union’s fight against automation will impede efficiency and lead to higher shipping costs. Yet, as the information in Violation Tracker Global will show, the shippers themselves have already been boosting costs through price-fixing and other anti-competitive practices across their global operations.

Violation Tracker Global will be available starting on October 8 at:
https://violationtrackerglobal.goodjobsfirst.org/

Apple Loses Its Sweet Irish Tax Deal

When governments in the United States decide to give special tax breaks to large corporations, the sky is the limit and no one can challenge that largesse. As Apple just learned to the tune of about $14 billion, things are different in the European Union.

The EU is much stricter about the tax benefits and other forms of financial assistance that can be given to companies. What is called state aid is not banned entirely, but it is supposed to be used only when it is “exceptionally justified” and does not distort competition.

Moreover, the European Commission can bring legal action when it believes that a member state has awarded state aid improperly, with the remedy being that the company has to give back the money.

Some state and local governments in the U.S. use procedures know as clawbacks to recover economic development assistance from companies that fail to meet job-creation or other promises they made to receive aid. The European Commission cases, by contrast, are not related to company performance but are instead based on an argument that the aid was illegitimate to begin with.

EU member states are supposed to get prior approval for state aid awards. Yet they often adopt practices, especially with regard to taxes, that the Commission may later decide constitute improper aid. That is what happened with Apple, which had received special rulings in Ireland dating back to the early 1990s that allowed it to avoid paying billions of euros in taxes in that country. Those rulings allowed two Irish subsidiaries of Apple that held valuable intellectual property licenses to exclude profits linked to those licenses from their taxable income in Ireland.

In 2016 the Commission challenged that arrangement and ordered Ireland to recover the aid. At the behest of both Apple and the Irish government, a lower court rescinded that order in 2020. The EU’s highest legal authority, the Court of Justice, just ruled the other way and put Apple on the hook for about 13 billion euros.

Legal disputes over state aid are common in the EU. Since 1999 the Commission has brought more than 300 challenges and forced companies to repay billions of euros. Yet it is also common for deep-pocketed corporations to appeal those decisions—and often they succeed. Amazon, for example, successfully appealed a ruling by the Commission against its tax deal with Luxembourg.

From what I can tell, the largest case prior to Apple in which a Commission challenge survived appeals was one in which the electric utility EDF had to pay back over 1 billion euros to the French government. When the Commission announced its action in 2015, the EU’s top competition regulator, Margrethe Vestager, was quoted as saying: “Whether private or public, large or small, any undertaking operating in the Single Market must pay its fair share of corporation tax. The Commission’s investigation confirmed that EDF received an individual, unjustified tax exemption which gave it an advantage to the detriment of its competitors, in breach of EU State aid rules.”

The Apple ruling reinforces the idea that special tax breaks are harmful both to competition and to fair taxation. We are a long way from that realization in the U.S., where tax deals and other incentives are widely treated as corporate entitlements.

Note: The Apple and EDF cases, along with much more, will be included in the forthcoming Violation Tracker Global.

Attacking Price Manipulation

Throughout Joe Biden’s time in office, critics have complained he has not done enough to address high grocery prices. Now that his replacement as the Democratic presidential nominee has come forth with a plan to deal with the problem, many of those same critics are accusing Kamala Harris of going too far.

A wide range of pundits are particularly scandalized at Harris’s critique of price-gouging. It is perfectly valid to question whether her policies would be effective, but many commentators are trotting out simplistic and outdated economic principles to claim that corporate price manipulation is non-existent.

These believers in the supremacy of market forces are apparently unaware that the food sector is a hotbed of anti-competitive practices. This is especially true in the meat industry, where a small number of dominant corporations have had to pay out hundreds of millions of dollars in fines and settlements to resolve allegations that they collude to keep prices high.

Take the case of JBS, the giant Brazilian corporation that owns U.S. companies such as the poultry producer Pilgrim’s Pride and the beef producer Swift. As shown in Violation Tracker, JBS and its subsidiaries have paid out over $200 million in class action antitrust lawsuits since 2021. Pilgrim’s Pride was also sentenced to pay $107 million in criminal penalties after pleading guilty to federal charges of participating in a conspiracy to fix prices and rig bids for broiler chicken products.

Tyson Foods, another poultry goliath, has paid out over $120 million in class action settlements over the past three years, including one case in which it had to hand over $99 million. In the pork industry, Smithfield Foods, owned by the Chinese corporation WH Group, has paid around $200 million in price-fixing settlements.

Price-fixing conspiracies have also been alleged in the tuna industry, in which StarKist paid a criminal penalty of $100 million, as well as in milk processing, peanut processing and other food sectors. In 2020 the National Milk Producers Federation agreed to pay $220 million to settle litigation alleging it sought to boost prices through a program to reduce the number of dairy cows. There was even a $28 million settlement involving a mushroom marketing cooperative.

Aside from their illegal collusion on prices, food companies have been accused of entering into illegal agreements designed to suppress wages. A federal court in Oklahoma recently gave preliminary approval to a settlement in which Pilgrim’s Pride will pay $100 million. Other poultry processors such as Tyson and Perdue previously agreed to pay a total of tens of millions of dollars more.

Price-fixing is not exactly the same thing as price-gouging. The first involves illegal agreements among purported competitors, while the other may be committed by a powerful company acting on its own. Price-gouging can be illegal in certain circumstances under state law, especially if it happens during an emergency. Yet it is not, alas, illegal for companies to jack up prices in most circumstances.

That’s why all chief executives of food companies are not being led away in handcuffs. Yet it is all the more reason for the federal government to devise innovative ways to get corporations to bring down prices that escalated through market manipulation of one form or another.

The World Against Google

The decision by a federal judge declaring Google’s search business to be an illegal monopoly came just in time. Several chief executives and Silicon Valley billionaires had begun to openly pressure Kamala Harris to commit to ousting Lina Khan as chair of the Federal Trade Commission because of her aggressive antitrust policies. That arrogant and clumsy lobbying effort was effectively torpedoed by the blockbuster court ruling.

It should come as no surprise to have Google found guilty of anti-competitive practices. Earlier this year, another federal court gave final approval to a settlement in which Google agreed to pay $90 million to resolve allegations that its Play Store practices violated antitrust law.

Google and its parent Alphabet Inc. have been facing legal challenges to their practices around the world. Most notable have been the conflicts with the European Union, which has imposed penalties of nearly $10 billion. These include a $5 billion fine in 2018 for putting illegal restrictions on Android device manufacturers and mobile network operators to cement its dominant position in general internet search.

The French Competition Authority has fined Google several times, including a $593 million penalty in 2021 for having disregarded previous injunctions protecting the rights of newspaper publishers. That same year, the agency fined Google $267 million for abusing its dominant position in the online advertising market.

The Italian Competition Authority fined Google $121 million for preventing Enel X Italia from developing an Android version of an app for users of electric vehicles. The agency is conducting a broader investigation of the company.

The Competition Commission of India has fined Google a total of nearly $300 million for abusing its dominant position in online general web search and web search advertising services and for anti-competitive practices in relation to its Play Store policies and in the market for Android devices.

The Korea Fair Trade Commission has fined Google a total of about $200 million for blocking competing mobile operating systems from entering the market and for undermining fair competition in the market for mobile games.

Even the Russian Anti-Monopoly Service has gotten in on the act. In 2022 it fined the company $21 million for abusing its dominant position in the video hosting market. When Google failed to pay that fine, the agency increased the penalty by $47 million.

Unless it gets overturned on appeal, the U.S. decision against Google is likely to have more significant consequences–both monetary and structural–than the foreign cases. It is also being regarded as an indicator of how things may go in the antitrust lawsuits pending against other tech giants such as Amazon, Apple and Meta as well as another case against Google concerning online advertising.

Google has come a long way since it presented itself as an upstart company with a Don’t Be Evil motto. It and the rest of Big Tech accumulated tremendous wealth and power. Maybe now they will be cut down to size.

The U.S. and foreign cases discussed above and much more will be contained in the forthcoming Violation Tracker Global.

Connive Nation

When Live Nation, the giant of the concert promotion business, and Ticketmaster, which dominated the performance booking business, proposed to merge in 2008, antitrust regulators thought it would be sufficient to require some concessions from the firms.

The Justice Department and state attorneys general gave their blessing to the deal in exchange for an agreement by Ticketmaster to license its ticket software to a competitor, to sell a subsidiary, and to promise not to engage in various anti-competitive practices.

Christine Varney, Assistant Attorney General in charge of the Department of Justice’s Antitrust Division, declared: “The Department of Justice’s proposed remedy promotes robust competition for primary ticketing services and preserves incentives for competitors to innovate and discount, which will benefit consumers. The proposed settlement allows for strong competitors to Ticketmaster, allowing concert venues to have more and better choices for their ticketing needs, and provides for anti-retaliation provisions, which will keep the merged company in check.”

That’s not exactly what happened. The merged company, Live Nation Entertainment, was accused by DOJ of repeatedly violating the agreement. In 2019 DOJ extended the court order under which it was overseeing Live Nation for another five years—which hardly seemed like an adequate way to rein in a company that was apparently flouting the commitments it had made.

Now DOJ is finally moving to undo its original mistake of allowing the merger. It and a group of state AGs have filed a lawsuit accusing Live Nation of operating as an illegal monopoly and calling for its dismantlement. Attorney General Merrick Garland charged that the company’s anti-competitive practices harm fans, artists, smaller promoters, and venue operators: “The result is that fans pay more in fees, artists have fewer opportunities to play concerts, smaller promoters get squeezed out, and venues have fewer real choices for ticketing services.”

Along with these economic impacts, Live Nation has been frequently embroiled in regulatory actions and class action lawsuits alleging a variety of misconduct. Violation Tracker documents a slew of such cases in which the company has paid tens of millions of dollars in fines and settlements. They include:

A $71 million settlement with the Arizona Attorney General to resolve allegations it failed to provide refunds for live events that were cancelled, postponed, or rescheduled due to the COVID-19 pandemic.

A $42 million settlement of a class action alleging it overcharged customers for delivery and processing fees.

A $23 million settlement of a class action alleging it misled customers into joining a costly online coupon service.

A $19 million settlement of a class action alleging it misled customers into purchasing tickets from a companion website that charged more than the face value.

There is even a criminal case in the mix. The Ticketmaster portion of Live Nation was accused by federal prosecutors in New York of improperly accessing the computer system of a competitor. The company was able to resolve the matter in 2020 by entering into a deferred prosecution agreement and paying a $10 million fine.

If the DOJ is successful in its current lawsuit, the result could be greater competition as well as fairer practices in the live event industry.

Antitrust in the Workplace

Seeking to end one of the last remaining forms of indentured servitude in the United States, the Federal Trade Commission has issued a final rule that would largely ban the ability of companies to prevent employees from taking a job with a competing firm. The change would remove shackles from an estimated 30 million workers.

This is a bold move by the FTC, which normally handles cases involving anti-competitive practices by individual companies and which has traditionally focused on consumer protection rather than worker rights. The agency argues that eliminating non-competition clauses will not only help workers but will indirectly benefit consumers by stimulating business formation and reducing market concentration.

There appears to be broad support for the FTC action. The agency said that, of the 26,000 comments it received on the proposed rule on non-competes issued last year, over 25,000 endorsed the change. Corporations, on the other hand, are outraged at the rule. The U.S. Chamber of Commerce issued a statement calling it “another attempt at aggressive regulatory proliferation.” The Chamber, which vowed to bring a legal challenge, also argued that the issue should be left up to the states, most of which currently allow non-competes.

Non-competition restrictions are fundamentally a form of wage suppression. Workers barred from taking a job with a rival company are in a weaker bargaining position when it comes to pay. As such, non-competes serve the same function for employers as two other anti-competitive practices: non-poaching agreements and wage-fixing arrangements.

The first of those are agreements among companies not to hire people from one another. Workers, whether or not they are subject to a non-competition agreement, are thus in effect blacklisted if they apply for a position at another firm. The Justice Department has brought several cases as criminal matters and has faced a series of setbacks in court.

Private plaintiffs’ lawyers, on the other hand, have won a few dozen settlements in civil class actions. The largest no-poach settlement occurred in 2015, when Apple, Google, Intel and Adobe Systems agreed to pay a total of $415 million to class action plaintiffs. Cases have also involved blue-collar occupations such as truck drivers and railcar assembly workers.

Wage-fixing, analogous to price-fixing, occurs when employers in a specific labor market agree not to pay wages above a certain level. DOJ has had limited success in its prosecutions in this area as well, but here too there have been some substantial civil settlements. The most significant of these have occurred in the poultry processing industry, where companies including Pilgrim’s Pride have paid over $40 million in settlements. Several other settlements, including a $60 million agreement with Perdue Farms, are awaiting final court approval. Groups of hospitals in Michigan and upstate New York have paid over $70 million to resolve allegations they conspired to depress the wages of nurses.

The FTC’s regulatory initiatives, along with these court cases, constitute an aggressive use of antitrust law to address employer abuses. They offer significant hope for reducing the severe imbalance of power between employers and workers in U.S. labor markets.

Swiping Fees

For the past two decades, groups of merchants have been suing Mastercard and Visa for charging excessive credit card processing fees, also known as swipe fees. That effort has now paid off with a tentative class action settlement that will reduce the fees by an estimated $30 billion over the next five years.

This deal is on top of about $6 billion the companies previously agreed to pay in damages. Together, the cases represent one of the biggest business litigation settlements ever.

As large as the amounts are, they are not putting too much of a dent in the profitability of Mastercard and Visa, which together rake in about $100 billion a year from merchants and together enjoy about $30 billion in annual profits.

The issue of swipe fees has come up in connection with the proposed acquisition of Discover, the perennial also-ran of the credit card world, by Capital One. In its announcement of the deal, Capital One claimed it would enable Discover “to be more competitive with the largest payments networks and payments companies.” It is making similar arguments in its filings with regulators to gain approval for the purchase.

While Capital One may not have caused as much grief as Visa and Mastercard, its track record shows it cannot claim to be the savior of consumers and small businesses. In 2012, for example, the Consumer Financial Protection Bureau fined the company $25 million and ordered it to refund $140 million to customers following an investigation of deceptive tactics used in marketing credit card add-on products.

Capital One has also paid out tens of millions of dollars in settlements in class action lawsuits alleging abuses such improperly raising credit card interest rates after promoting low rates and charging unfair overdraft and balance inquiry fees.

The largest penalties paid by Capital One have been in cases involving deficiencies in its anti-money-laundering practices. In 2018 it was fined $100 million by the Office of the Comptroller of the Currency for failing to file required suspicious activity reports.

In 2021 the bank was fined $290 million by the Treasury Department’s Financial Crimes Enforcement Network for doing business with check-cashing services known to be linked to organized crime in New York and New Jersey.

Capital One may not have accumulated penalties to the same extent as larger banks such as Bank of America, JPMorgan Chase, Wells Fargo and Citigroup, but its total payouts have reached nearly $1 billion.

If it succeeds in buying Discover, it will acquire a company with $275 million in penalties of its own. Most of that comes from a 2012 case in which the CFPB fined Discover $14 million and ordered it to refund $200 million to customers said to have been subjected to deceptive marketing tactics regarding credit card add-on products. In other words, practices similar to those for which Capital One was penalized that year.

The solution to excessive swipe fees will come not from allowing another player with a questionable record to join Visa and Mastercard in dominating the payments market, but rather through antitrust and other regulatory action restricting the predatory practices of that market.

Targeting the Poultry Conspirators

High food prices have been one of the most contentious issues of the past few years, causing many people to remain negative about the U.S. economy even as other indicators have improved. Grocery inflation has several cases, but one that does not receive enough attention is the ability of large corporations to set prices at will.

Price escalation is possible because of the enormous amount of concentration in the food sector. Not only can major producers hike up prices on their own, they conspire with their few competitors to do so in tandem. This is known as price-fixing, and since the passage of the Sherman Act of 1890 the practice has been illegal under federal law. States bring prosecutions as well.

One state that has been particularly aggressive in this arena is Washington. Its Attorney General, Bob Ferguson, has targeted the poultry industry, which is believed to be a hotbed of anti-competitive practices. In 2021 Ferguson’s office sued 19 companies said to account for 95 percent of the broiler chickens sold in the entire country, alleging they conspired to restrain production, manipulate price indices, rig bids and exchange proprietary information with one another. The defendants included familiar names such as Tyson Foods, Pilgrim’s Pride and Perdue Farms.

Over the past two years, Ferguson has racked up an impressive record. Last April, 14 of the corporate defendants agreed to pay settlements totaling $35 million. The largest shares came from Pilgrim’s Pride ($11 million), Tyson ($10.5 million) and Perdue ($6.5 million).

Since then, Ferguson has kept up the pressure on the other defendants. Most recently, House of Raeford Farms agreed to a $460,000 settlement. The two remaining holdouts, Foster Farms and Wayne-Sanderson Farms, are scheduled to go on trial later this year.

They may change their minds about going to court. All of the settling defendants have agreed to cooperate with Ferguson’s office in producing evidence that can be used in that trial. Those defendants have also signed consent decrees under which they commit to changing their practices and acknowledge that the AG can seek additional fines if they fail to do so.

Ferguson wants to have even stronger tools at his disposal. Recently, he joined with several state legislators to propose legislation that would increase the maximum penalty for price-fixing and other anti-competitive practices.

At the same time the big poultry companies work to keep prices high, they have been accused of conspiring to keep pay low. The U.S. Justice Department has been targeting the industry for the improper exchange of compensation date, a practice that amounts to wage-fixing. One company, George’s Inc. agreed last year to pay $5.8 million to DOJ. The feds are seeking other settlements.

There has also been private litigation on this issue, resulting in large settlements such as a $29 million payout by Pilgrim’s Pride and $12 million by Simmons Foods.

It remains to be seen whether the federal and state prosecutors, together with plaintiffs’ lawyers, can get the poultry industry to stop colluding on prices and wages. Yet these cases should serve as a reminder of the extent to which food inflation is the result of corporate power and greed.

The Other Problem with Airline Mergers

A proposed acquisition of Hawaiian Airlines by Alaska Airlines would be bad news for those traveling between the U.S. mainland and Hawaii. The combined company would have a huge share of that market and would thus be in a position to keep fares sky high.

Another negative feature of the deal is that it would enhance the position of a company with a checkered regulatory compliance record. As shown in Violation Tracker, Alaska Air and its subsidiaries have been cited more than 200 times by the Federal Aviation Administration for a variety of safety violations involving issues such as maintenance, hazardous waste and security practices.

All the airlines have such violations, and the larger carriers have been fined more times, reflecting their wider operations. But in relation to its size, Alaska Air’s record is worse than that of its counterparts. Its total of 220 FAA violations is not far behind that of Southwest’s total of 270, even though Southwest carries about four times as many passengers.

Alaska Air’s violations also tend to be more serious. Its 220 cases have generated more than $10 million in fines (the FAA’s penalty structure is not very onerous), while the total from the 539 fines paid by the much larger Delta Air Lines is below $9 million. (All the FAA statistics are limited to cases with fines of at least $5,000.)

Alaska Air has also racked up a series of penalties from the Transportation Department’s Aviation Consumer Protection Division. Including matters involving Virgin America, which Alaska Air acquired in 2016, there have been 13 of those cases with total fines of $777,500.

Then there is the issue of employment practices. Earlier this year, a federal judge in California ordered Alaska Air to pay nearly $31 million to a class of flight attendants who had sued Virgin for failing to pay proper overtime pay and failing to pay for break time as required under California law. The workers originally won $77 million in damages, but the company appealed and got part of the award overturned. Alaska Air also tried to get the U.S. Supreme Court to throw out the rest of the award but the high court declined to hear the case. The matter thus went back to the trial court, where the judge settled on the $31 million payout.

Hawaiian Airlines has a somewhat less egregious regulatory track record. It has been fined 31 times by the FAA and five times by the Transportation Department’s consumer division. There is every reason to suspect that if the merger goes through, its compliance practices would come to look more like that of its new parent.

When antitrust regulators review a proposed merger, they have to give primary consideration to the potential market impacts. Yet it is also worth keeping in mind that as companies grow larger, they often tend to become less mindful of safety matters and other regulatory obligations. Or if they already have a lax approach to compliance, that problem is likely to become worse. All this is just one more reason bigger is usually not better.