Overview
Read how the outcome of the 2024 US election could affect clients in the antitrust space. Partners Jon Dubrow, Greg Heltzer, and Ryan Tisch contributed their thoughts.
In Depth
How would a Harris-Walz administration affect clients in your practice?
Bottom line: On the antitrust merger enforcement front overall, we would expect an approach that is relatively close to the Biden positions but moderated at the margins, and potentially a more pragmatic approach to how problematic issues are resolved.
Added context: Harris-Walz might be less aggressive on antitrust than Biden, given Harris’s California ties to Silicon Valley and the tech business. Press reports indicate that some donors are strongly opposed to Federal Trade Commission (FTC) Chair Khan continuing in that role. Some have also argued that a President Harris would be less indebted or tied to the most strongly progressive elements in the Democratic Party, and she could face a Republican Senate. Collectively, that could mean that key Department of Justice (DOJ)/FTC appointees would be less progressive than current agency leadership.
We could see some changes in approach to merger remedies, with the agencies reverting to the pre-Biden mainstream position and no longer being hostile to practical remedies (such as consent orders and divestitures to remedy competitive concerns). Based on Harris’s statements about price gouging, we would anticipate ongoing aggressive efforts to eliminate practices that could drive up prices, particularly for “kitchen table” products and healthcare.
New leadership at the agencies could also be procedurally more responsive to the needs of parties seeking merger approval (e.g., taking steps to offer more finality when merger investigations are closed).
We would expect little, if any, change in direction with respect to cartel investigations or other law enforcement actions, although it is possible that new DOJ leadership would take a softer/noncriminal approach to enforcement of the antitrust laws in labor markets.
How would a Trump-Vance administration affect clients in your practice?
Bottom line: The effect of a Trump-Vance administration is significantly harder to predict, but we would anticipate leadership changes at the FTC and DOJ, leading to meaningful policy changes. However, the administration would not be soft on antitrust.
Added context: The campaign has made few affirmative statements of economic policy related to antitrust or competition. Vance has suggested that he approves of Chair Khan’s management of the FTC, specifically including its focus on antitrust enforcement against the tech industry.
With anticipated leadership changes at the FTC and DOJ under a Trump presidency, we would expect that some of the more extreme policy positions taken by the Biden administration would be rolled back, and the 2023 Merger Guidelines would be rescinded (should Trump appoint personnel with a similar approach to antitrust law as during his prior administration). In particular, we would expect that consents and merger remedies would again be a favored merger remedy and that the FTC and DOJ would be reticent to apply some of the more aggressive and novel approaches set out in the 2023 Merger Guidelines.
Despite the changes, a Trump administration should not be perceived as being soft on antitrust. During his first administration, Trump’s nominees to the FTC and DOJ (while being recognized, longtime Republican antitrust voices) set out an enforcement platform that was more aggressive than a typical Republican administration, though far less aggressive than under the Biden administration.
With either administration, what should clients be most focused on from a regulatory and enforcement perspective?
Bottom line: We anticipate that there will be a more favorable environment for antitrust in M&A, going back to more traditional, pragmatic approaches with consent orders allowing for divestitures to solve problematic portions of transactions.
Added context: Antitrust appointments should be watched closely. Appointees will set the tone for the rollout of new Hart-Scott-Rodino filing rules, which will likely require a period of accommodation and adjustment between parties filing merger notifications and the agencies.
We further expect that certain industries might face closer scrutiny under either a Harris-Walz or Trump-Vance administration. Harris would look closely at consumer-oriented businesses perceived to have poor records on pricing or customer service. Trump would eye tech companies and companies in industries perceived to have offshored employment.
