The antitrust outlook in
Some Recent Surprises
Historically,
During the Trump administration, however, we saw some surprising
- Behavioral Relief.
- Agency Clash.
DOJ engaged in public criticism of and opposition toFTC's successful district court challenge of Qualcomm's licensing practices relating to standard essential patents addressing 4G transmission technologies, an outcome subsequently reversed by the Ninth Circuit in August 2020.Also note thatDOJ issued the new Merger Remedies Manual noted above unilaterally, without separate adoption by theFTC . - State AG Activism.
DOJ approved the merger of Sprint and T-Mobile, subject to significant divestiture obligations. That approval was followed by a failed litigation effort by numerous state AGs to challenge that very transaction and theDOJ -approved structural remedies.
New Administration Surprises?
The Biden administration will presumably bring new enforcement priorities and direction to both
1. The Consumer Welfare Standard
One fundamental question is whether the Biden administration will entertain proposals to reexamine the purposes of antitrust enforcement. For decades, federal antitrust enforcement has been driven by the "consumer welfare" standard, which seeks to evaluate both transactions and conduct based on their impacts on consumers.
At the same time, however, there is a broader debate over the scope of that established goal and whether the objectives of antitrust enforcement should change and the tools of enforcement should be expanded. Aggressive "reform" proposals have been advocated by 2016 presidential candidates
2. Agency Interest in Vertical Mergers
On
Were the Biden administration inclined to increase scrutiny of vertical mergers, it presumably would nevertheless follow the analytical guidance set forth in the new (and unsurprising) Vertical Merger Guidelines. That increased scrutiny could come through a more concerted effort to review vertical transactions with the potential to foreclose competitors, raise rivals' costs, or result in the exchange of competitively sensitive information. These vertical merger concerns are already articulated in the new Vertical Merger Guidelines.
3. State Attorney General Activism
Antitrust opposition by state AGs – at least in the form of an independent legal challenge in court – to a merger approved at the federal level by
Such state AG antitrust activism appears much higher today than in prior decades. We can expect such activism to continue during the Biden administration. One impact of such increased activism could be an increase in the consideration given by
4.
Regardless of the Biden administration,
We should not forget the lessons of
An effective antitrust compliance program, in addition to detecting and deterring cartel conduct, now brings additional benefits. While
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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