The ABA Antitrust Fall Forum explored antitrust enforcement trends, the evolving role of federal agencies and state attorneys general, and predictions for the next presidential administration. Below is a session-by-session summary of the forum’s highlights.
The Biden Administration Turned the Page on Antitrust
Panelists critiqued the Biden administration’s impact on antitrust enforcement, noting the following:
- Limited Durability: Despite significant rhetoric, changes under this administration may lack staying power, particularly regarding vertical merger enforcement.
- Merger Guidelines: The 2023 merger guidelines represent a shift by incorporating references to case law, but panelists suggested the 2023 guidelines require “life insurance” to survive the next administration.
- Resource Constraints: Agencies face finite capacity for merger enforcement and require increased budgets. Remedies, while not new, remain critical to navigating enforcement challenges.
Merger Efficiencies: Overpromised and Underdelivered
This session challenged the narrative that mergers often generate substantial efficiencies:
- Questionable Outcomes: A McKinsey report found that approximately 70% of merger efficiencies fail to meet expectations.
- Guideline Evolution: The 2023 merger guidelines omit efficiencies language, reflecting skepticism about their reliability.
- Case Studies: MillerCoors and ABI/Modelo highlighted the complexities of predicting competitive outcomes and efficiency trade-offs.
- Brown Shoe Precedent: The 1962 decision emphasized that mergers could harm competition even if consumer prices drop, a principle relevant to the JetBlue/Spirit blocked merger.
Fireside Chat: The Impact of State Attorney Generals on Antitrust Enforcement
Jon Sallet, Special Assistant Attorney General, Office of the Colorado Attorney General and Terrell McSweeny, partner at Covington & Burling LLP and Conference Co-Chair highlighted the growing influence of state AGs in antitrust cases:
- Increased Collaboration: State AGs work closely with federal agencies, leveraging local perspectives to strengthen enforcement.
- National Mergers, Local Impact: Cases like Kroger’s merger underscored how national deals can violate state laws or harm state markets.
- Tech Enforcement: The bipartisan coalition in the Google Search case exemplifies the states’ role in high-stakes antitrust battles.
Fireside Chat: Christine Wilson and FTC Commissioner Melissa Holyoak
Melissa Holyoak, FTC Commissioner, offered insights into the FTC’s direction:
- New HSR Guidelines: The initial proposals were criticized, but the finalized version addressed key issues like labor data and prior acquisitions.
- Merger Remedies: Holyoak criticized the administration for favoring litigation over consent decrees, emphasizing the need to preserve competition without stalling deals.
- Consumer-Centric Focus: Holyoak stressed that antitrust enforcement must prioritize consumer welfare to avoid inconsistent outcomes.
- Artificial Intelligence: The FTC scrutinizes AI’s impact, particularly regarding children and data privacy, while calling for federal privacy regulations.
Is Anticompetitive Conduct Best Determined by the FTC?
This session debated the FTC’s constitutional authority in antitrust rulemaking:
- Legal Challenges: Section 3’s constitutionality and Section 6g’s rulemaking authority are under scrutiny.
- Federal Courts: Challenges to HSR guidelines and merger cases increasingly end up in federal court, reflecting skepticism of the FTC’s expansive approach.
Lessons from Past Presidential Transitions
Panelists reviewed how political transitions impact antitrust enforcement:
- Leadership Changes: FTC Commissioners often remain in office until successors are confirmed, delaying political realignment.
- Trump Administration Predictions: Experts foresee a mix of populist policies, tech enforcement continuity, and more settlements over litigation.
Setting the Stage for the Next Administration
Looking ahead, panelists identified key priorities and challenges for the next presidential term:
- Big Tech Breakups: Meta, Google, Apple, and Amazon could face significant structural remedies.
- Merger Guidelines: Current guidelines may be replaced and removing them before drafting new ones could create uncertainty.
- Labor Non-Competes: Pending court decisions in the 5th and 11th circuits are expected in 2025.
- AI and Innovation: Enforcement must balance competition concerns with fostering innovation in emerging markets.
Key Takeaways
- Merger Enforcement: Agencies face resource challenges and must refine their approach to evaluating efficiencies and remedies.
- State-Level Influence: State AGs are pivotal players in antitrust enforcement and provide additional resources to the agencies.
- Future Uncertainty: Political transitions may disrupt current guidelines, but bipartisan collaboration offers hope for some continuity.
- Consumer Focus: A return to consumer welfare as the guiding principle is seen as essential for effective antitrust enforcement.
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