Heard at the 2024 Antitrust Law Section Spring Meeting: Part II

STATE ENFORCERS REMAIN ACTIVE

• Ignore State Antitrust Enforcers at Your Own Peril

Prominent state enforcers described how they are aggressively enforcing state and federal antitrust laws by bringing cases and reaching settlements with or without a concurrent action from federal antitrust enforcement agencies. For example, state antitrust enforcers have led the way on aggressively clamping down on noncompete agreements in employment agreements and investigating and challenging no-poach agreements.

Leading antitrust enforcers from California, Maryland, Utah and Washington state touted their own statutes that prohibit or severely restrict noncompetes and other post-employment restrictive covenants. In the merger context, more states are creating “mini-HSR regimes” requiring parties to notify state antitrust enforcers of transactions in certain industries where states are especially worried about consolidation, particularly in healthcare. Several states’ mini-HSR regimes require notification of transactions that would fall below the Hart-Scott-Rodino Act (HSR) regime’s reporting threshold.

Gwendolyn Cooley, Chair of the National Association of Attorneys General Multistate Antitrust Task Force, emphasized that state attorneys general have the right to challenge mergers based on nationwide effects – not just effects within their jurisdictions.

• Increased Interagency Collaboration Supports Greater State Antitrust Enforcement 

State enforcers are partnering with other federal and state agencies on antitrust enforcement. For example, Schonette Jones Walker, Chief of the Antitrust Division for the Maryland Attorney General, touted a recently launched partnership between the US Department of Agriculture and several state attorneys general to protect competition and consumers in food and agricultural markets.

THE BIDEN ADMINISTRATION CONTINUES ‘WHOLE-OF-GOVERNMENT’ APPROACH TO COMPETITION ENFORCEMENT 

• The Biden Administration Is All in on Interagency Cooperation

The Biden administration has taken a “whole-of-government” approach to competition policy. In the wake of the administration’s July 2021 Executive Order on Promoting Competition in the American Economy, the Federal Trade Commission (FTC) and the US Department of Justice (DOJ) have entered into numerous memorandums of understanding with industry regulators.

Mac Conforti, Assistant Chief of the DOJ Antitrust Division’s Competition Policy & Advocacy Section, explained that the “whole-of-government approach” involves both enforcement and regulation. On the enforcement front, the antitrust agencies have opened more investigations and brought more cases as a result of interagency memorandums of understanding. These agreements have fostered information sharing and case referrals across a variety of industries, including agriculture. On the regulatory front, DOJ has issued public comments on proposed regulations from non-antitrust agencies in numerous industries, with the aim of shaping regulatory frameworks that enhance competition and limit barriers to entry.

• Industry Regulators Are Focused on Competition

Industry regulators are also increasing their own focus on competition in their respective sectors. For example, the Consumer Financial Protection Bureau (CFPB) has increased its cooperation with DOJ and FTC and is actively exercising its own rulemaking authority to enhance competition in consumer financial markets.

In one initiative, CFPB is promulgating rules that would enhance the portability of consumer bank account information, promoting competition from smaller banks. Likewise, the Federal Deposit Insurance Corporation (FDIC) is in the process of modifying its bank merger review process. Traditionally, the FDIC’s bank merger analysis focused on parties’ market shares for local consumer deposits; however, its new approach will focus on competition in different product lines to take a more wholistic approach to bank mergers.

• Consistent Antitrust Goals Remain

At the annual Enforcers Roundtable, FTC Chair Lina Khan and DOJ Assistant Attorney General (AG) Jonathan Kanter emphasized that the end goal of antitrust enforcement remains increasing access to products and services beneficial to the lives of everyday consumers.

Across the board, enforcers highlighted healthcare and digital markets as the top areas of their current and future enforcement priorities. Additionally, Cooley, Chair of the National Association of Attorneys General Multistate Antitrust Task Force, highlighted the states’ use of state legislation and resources in collaboration with the federal antitrust enforcers to investigate complex market realities, reinforcing the “whole-of-government” approach.

REGULATORS ARE FOCUSED ON INFORMATION EXCHANGES

• New Technologies Must Play by Old Rules

Markus Brazill, Counsel to the Assistant Attorney General at the DOJ’s Antitrust Division, emphasized that established principles regarding collusive conduct apply the same to the “digital realm” as they do to the “physical realm.” While many have called for new guidelines on algorithmic pricing and complex data aggregation, Brazill believes the “novelty” of these emerging technologies does not change the underlying antitrust principles. If anything, new technologies “facilitate collusive practices that would otherwise not be feasible.” DOJ will continue to treat price fixing – however it is achieved – as per se unlawful.

• DOJ Opines on the Withdrawal of Safety Zones for Information Sharing 

When DOJ and FTC withdrew their policy statements for the healthcare industry in 2023, they withdrew safety zones for information exchanges. Brazill emphasized that the healthcare statement’s safety zones were never meant to apply outside of the healthcare industry, and the safety zones and policy statements were “formalistic and arbitrary” and “not reflective of the economics of information exchanges.”

Assistant AG Kanter opined that the withdrawn guidelines included “outdated” guidance on the use of third-party intermediaries to mitigate antitrust risk resulting from data exchanges, and that nowadays, such third parties or technology tools will “magnify” potentially anticompetitive effects. Current DOJ and FTC leadership evaluate information exchanges on a case-by-case basis, typically under the rule of reason, analyzing the nature of the market and the type of information exchanged.

AGGRESSIVE MERGER ENFORCEMENT

• The New Merger Guidelines Signal a More Aggressive Approach

Agency staff commented on the new Merger Guidelines and the more aggressive approach to merger enforcement that they embody.

Under the December 2023 Merger Guidelines, DOJ and FTC look at how a transaction affects the full ecosystem of trading partners – including downstream customers, upstream suppliers and rivals. The antitrust agencies are also looking to competitive harms beyond increased prices and reduced output, such as lower quality, reduced consumer choice and less innovation. In addition, the guidelines allow the agencies to look solely at direct evidence of head-to-head competition and place less reliance on industry structure.

In the annual Enforcers Roundtable, Chair Khan further noted the agencies’ intent to conform their understanding of market realities to their theories of anticompetitive harm to protect the interests of nascent and innovative competitors. Khan also opined that the contention that an acquisition of a nascent competitor by an established firm is necessary for commercialization is unconvincing when the nascent competitor is selling to a monopolist. She emphasized that it is particularly critical to consider the effects of impeding nascent competition in the pharmaceutical industry.

• Negotiating Remedies: Come Prepared With a Buyer Upfront 

Agency staff emphasized that it is critical for merging parties to propose remedy packages that fully address all competitive concerns. In the antitrust agencies’ view, it is not their job to assist parties with determining what remedy package will be sufficient.

The agencies recommend selecting a strong divestiture buyer upfront and providing the government with unfettered access to that buyer, allowing the agency to vet its viability. The enforcers will view access restrictions – such as the merging parties controlling what documents and information the divestiture buyer produces to the government – with a high degree of skepticism.

Merging parties should also provide the divestiture buyer with sufficient time and resources to fully evaluate the divested assets and understand how to deploy them effectively once acquired. The agencies will evaluate whether the buyer has had sufficient time to vet the divestiture package.

• Challenges to Consummated Transactions Continue

Agency staff discussed recent government challenges to consummated acquisitions under both Section 7 of the Clayton Act and Section 2 of the Sherman Act. The fact that mergers have been previously notified and reviewed pursuant to the HSR Act does not preclude DOJ and FTC from later bringing actions challenging consummated transactions.

• “Mergers in Disguise” Are on European Enforcers’ Radars  

Competition enforcers from Brussels and Germany observed that corporations have attempted to evade merger control by, for example, lifting competitors’ staff in lieu of a formal acquisition.

Andreas Mundt, President of the German Bundeskartellamt (Federal Cartel Office), noted that these corporate maneuvers are “mergers in all but name” and “we must think about how to deal with these types of cases and think about whether legislation is needed.” Olivier Guersent, Director-General of the European Commission’s Directorate-General for Competition, noted that he has observed “relationships between large corporations and small artificial intelligence companies that conveniently never fall into the merger regulations,” further stating that he “would like to investigate whether clever lawyers deliberately planned [to evade merger regulation].”

ROBINSON-PATMAN: RESTARTING ENFORCEMENT?

• FTC Commissioner Alvaro Bedoya Wants to Revive Robinson-Patman Enforcement 

The Robinson-Patman Act prohibits price discrimination in certain circumstances. Although the law has been on the books for nearly a century, DOJ and FTC have not brought any enforcement actions under the Act in decades.

During a panel, FTC Commissioner Alvaro Bedoya expressed strong interest in bringing cases to enforce the statute, which is consistent with past comments. According to Bedoya, his priority is to “take the [Robinson-Patman Act] car out of the garage” and bring a winning case. He stated, “What happened in 1936 is happening again today. Large powerful market players are receiving secret deals smaller retailers are not, not because they’re efficient, but because they’re powerful.”

Given the antitrust agencies’ renewed interest in Robinson-Patman enforcement, companies should evaluate their pricing and trade policies to assess risk and ensure compliance.

NONCOMPETES AND NO-POACH AGREEMENTS

• The Status of the Proposed Noncompete Rule Is Uncertain 

In January 2023, FTC announced a Notice of Proposed Rulemaking that would ban noncompete clauses in employment contracts. The proposed rule states that noncompete provisions in employment agreements are an “unfair method of competition” under Section 5 of the FTC Act. While FTC has not disclosed when it expects the proposed rule to be finalized, the agency reiterated that it has closely reviewed more than 26,000 comments on the rule, and the final rule will incorporate the public’s feedback.

• Labor Market Enforcement Is Growing Globally

Although no-poach prosecution in the US has garnered recent attention, with DOJ and private plaintiffs bringing both criminal and civil enforcement actions, other jurisdictions, such as Canada, China and Australia, have begun to follow suit, prosecuting certain no-poach and wage-fixing agreements under antitrust and competition laws akin to those of the US. Salary benchmarking, in particular, is an area of focus for global antitrust enforcers.

CONSUMER PROTECTION

• FTC Rulemaking Authority Remains in Use

Samuel Levine, Director of the FTC Bureau of Consumer Protection, indicated FTC’s plans to continue using its rulemaking authority to address consumer harms, which the agency views as a more effective tool than relying solely on case-by-case enforcement. The FTC highlighted its particular focus on protecting consumers in the artificial intelligence and privacy spaces. Levine said the FTC intends to bring more Section 5 claims to pursue practices harmful to consumers.