Below is a summary of some of the most important points made by antitrust enforcers who participated in panels at the ABA Antitrust Section’s annual Spring Meeting. This summary is not exhaustive, but we hope it will be useful for clients and friends of the firm.

CRIMINAL AND CIVIL ENFORCEMENT

• Richard Powers, Deputy Assistant Attorney General at the US Department of Justice Antitrust Division (Division), provided an update on the Division’s revised Leniency Program, with the most substantial change being the requirement for prompt self-reporting, rather than just prompt termination, of the conduct being disclosed.
  • Marvin Price, Director of Criminal Enforcement at the Division, elaborated on the meaning of prompt reporting by referencing FAQ 22, which states that the promptness assessment is “based on the facts and circumstances of the illegal activity and the size and complexity of the operations of the corporate applicant.” While he acknowledged that “prompt reporting” contemplates that companies will take time to investigate and confirm that the conduct did in fact occur, it would not be prompt reporting to wait to report until the Division opens an investigation.
• Federal Trade Commission (FTC) Chairwoman Lina Khan and Jonathan Kanter, Assistant Attorney General (AAG) at the Division, explained that changes at their agencies were not meant to create uncertainty, although they acknowledged that during a time in which policies are undergoing changes, there will naturally be a period of uncertainty. They noted that approaches involving more bright-line rules should increase certainty.
• Doha G. Mekki, Principal Deputy Assistant Attorney General at the Division, said that the Division would bring significantly more civil litigation. She stated that the Division has been instructed to use the “full range” of statutory authority available to it, and she discussed collaboration between the Division and other agencies with competition-related authority (e.g., enforcement of the Packers and Stockyards Act, designed to protect against unfair, deceptive and anticompetitive conduct in the meat industry, with the US Department of Agriculture).
• James J. Fredericks, Chief of the Division’s Washington Criminal II Section, described labor collusion as “one of the most insidious” types of anticompetitive conduct and said the Division will not hesitate to bring criminal charges for cartel conduct in labor markets. He explained that the Division does not have a policy to pursue labor cases only in the healthcare industry and that future cases will likely extend into other sectors.
  • Global competition authorities are also increasing their focus on labor markets. In 2020, Brazil’s Administrative Council for Economic Defense brought its first labor market case involving information sharing among 35 companies and around 70 individuals.
• Nicholas Grimmer, Assistant Attorney General for Texas’ Antitrust Division, along with other state enforcers, said they would be increasingly focusing on bid rigging for government-awarded contracts, particularly given increases in government spending. He noted the potential for future collaboration between states and the Division’s Procurement Collusion Task Force, which was announced in late 2020.
• The European Union’s (EU) Digital Markets Act (DMA) gives the European Commission (EC) broad powers to enforce against certain conduct involving “core platforms services” (CPS) offered by covered digital platforms (e.g., self-preferencing of the platform’s own products). The DMA is expected to become effective around April 2023, and within six months, the EC will designate CPS, which will then benefit from a six-month grace period to comply with the DMA. EC Executive Vice President & Commissioner Margrethe Vestager expects the EC to begin enforcement of the DMA in 2024 in close cooperation with National Competition Authorities.

MERGER ENFORCEMENT

• AAG Kanter stated that remedies to address competitive concerns for proposed mergers, as opposed to litigated challenges, would be the exception rather than the rule and that structural remedies, such as divestitures, would be rare. The Division is prepared to litigate a greater number of merger cases.
• According to Chairwoman Khan, the FTC is examining revisions to the Hart-Scott-Rodino (HSR) form to collect data on the front end through questions calling for more probative information. Chairwoman Khan said these changes would enable the FTC to identify potentially problematic mergers more quickly.
• FTC Commissioner Christine Wilson expressed disagreement with the FTC’s new prior approval policy that requires parties to consent decrees and divestiture buyers in merger cases to obtain prior approval for certain future transactions, even if those transactions would not be reportable under the HSR Act. She argued that requiring divestiture buyers to seek prior approval will disincentivize quality buyers from helping to resolve FTC competitive concerns. Regarding the overall prior approval policy, Commissioner Wilson observed: “If you don’t like mergers, or if you think mergers are evil, this is a sensible policy.” Commissioner Wilson also hypothesized that the FTC’s cessation of its early termination program may be part of a broader policy to slow M&A activity or avoid criticism of its merger reviews.
• Holly Vedova, Director of the Bureau of Competition at the FTC, pushed back on criticism that the FTC has unduly delayed merger clearances. She said that the FTC is not a “white glove concierge service” to help parties close their transactions quickly, and that the FTC serves the American public and owes them close reviews of potentially anticompetitive mergers.
• Both FTC and Division leadership said that the agencies’ merger guidelines may be overly permissive and need to be updated to reflect new thinking. None of the agency representatives predicted when new merger guidelines would be issued.
  • According to AAG Kanter, the new guidelines will better reflect market realities and how firms are gaining market power.
  • Overall, Kathleen O’Neill, Senior Director of Investigations & Litigation at the Division, hopes the revised guidelines will include more focus on direct evidence of likely harm and critical thinking around nascent competition.
  • Commissioner Wilson said the agencies should avoid the enormous burden and inefficiencies that come with creating new guidelines that would be withdrawn in a year. She hopes for consensus and dialogue within the agencies.
  • FTC Commissioner Rebecca Slaughter suggested increased focus on internal documents rather than on economic reports to understand the underlying intent and strategy of the merging parties.

***

For more information or questions, please contact any member of the WilmerHale Antitrust and Competition team.