Overview
During this webinar, McDermott’s Global Antitrust team covered a number of new developments in global antitrust and competition law. Raymond Jacobsen discussed how the incoming Trump administration’s policies towards enforcement will likely compare to those of the Biden administration. Axel Schulz provided valuable information on the new European Commission setup and expected competition policies. Hendrik Viaene, Elai Katz, and Richard May, guest speaker and competition expert from the OECD discussed generative artificial intelligence (GenAI) and antitrust enforcement. Finally, Carina Kant and Lisa Rumin explained document production under the new Hart-Scott-Rodino (HSR) rules.
Top takeaways included:
- The Trump administration is likely to bring about significant change in their policy towards mergers, ultimately preferring a policy that is more favorable for business expansion. A significant change is likely to be that the Trump administration will embrace behavioral remedies and settlements to fix mergers that the Biden administration has all but disallowed. Despite their differing views on the role of antitrust and competition policy, the Trump administration will likely continue the Biden administration’s scrutiny of Big Tech and will continue to pursue criminal cases at a similar rate.
- The new European Commission is likely to introduce several new antitrust policies, including a new state aid framework and merger rules aiming at European competitiveness. First, it is expected that they will introduce a new State Aid framework as part of the Clean Industrial Deal. This framework will accelerate the roll-out of renewable energy, deploy industrial decarbonization, and ensure sufficient manufacturing capacity of clean tech. Second, there is likely to be a renewed effort to enforce a merger control policy that emphasizes European competitiveness, favoring the creation of European champions. Third, there is likely to be a focus on challenges facing small and medium-sized enterprises and small midcap companies, in particular to bridge the enforcement gap in relation to killer acquisitions. Finally, there will be continued enforcement of the Foreign Subsidy Regulation, with new guidelines to come in 2026.
- Generative AI has the potential to affect competition in at least three ways, including competition among GenAI foundation models. First, between generative AI companies themselves. Second, as a method for companies (i.e., competitors) to potentially push the bounds of antitrust laws, such as through algorithmic pricing. Third, the use of AI in competition enforcement and competition policy more broadly. For example, enforcement authorities could use generative AI in e-discovery or to analyze prices to discover cartels. Competition authorities globally are studying the entire GenAI value chain and are prepared to intervene when competition is no longer waged on merits.
- Under the new HSR rules, filers will have to submit more extensive transaction-related documents and ordinary-course strategic plan documents. As a result of the new rules, it is more important than ever for companies to pay attention to document creation, including: (i) undertaking an early antitrust assessment of a transaction to frame key issues before drafting begins; (ii) introducing or enhancing antitrust training related to document creation: and (iii) implementing robust process controls around document creation and legal review.
