The past nine months have seen significant changes across the antitrust landscape, with a new administration in the US, new leadership of the competition portfolio at the European Commission, and a shift in the strategic steer of the CMA in the UK. Earlier this month, Fordham Law School hosted its annual conference on International Antitrust Law & Policy which offered fresh perspectives on these developments. The conference covered a wide range of topics relevant in both the US and abroad, but five themes emerged as key areas to watch throughout the upcoming year:
AI and innovation continues to be top of mind for antitrust agencies.
Assistant Attorney General (“AAG”) Gail Slater kicked off the Fordham conference by discussing how antitrust can accelerate the US’s bid for dominance in the global race for AI. In a panel moderated by Freshfields’ Elizabeth Suarez, AAG Slater explained that a competitive environment is essential for AI growth, and antitrust regulators must prevent exclusionary conduct over essential resources like data that allow AI models to become competitive. AAG Slater wants both significant and smaller technology companies to be on an even playing field when it comes to AI innovation, and noted that antitrust was the “key” to protecting nascent competitors in the AI space.
Similarly, European regulators also are thinking about AI and innovation. Teresa Ribera, the Executive Vice President for Clean, Just, and Competition Transition at the European Commission noted that AI and cloud technologies were top of mind for European regulators, and innovation was “central” for competitiveness and productivity in the EU.
Regulators focus on streamlining processes for merger reviews.
Both US and foreign regulators touted recent process changes that have allowed merger reviews to be completed more quickly. In the US, both AAG Slater and FTC Director of the Bureau of Competition (“BC Director”) Daniel Guarnera discussed the recent return of early termination, or the termination of the HSR waiting period before its official end date. BC Director Guarnera noted that the FTC had granted nearly 250 early terminations so far this year. BC Director Guarnera also mentioned the FTC’s revival of “phased investigations” where instead of issuing full Second Requests, the agency asks parties discrete factual questions to work to resolve any anticompetitive concerns.
The UK’s CMA is also implementing changes to increase the efficiency of their merger reviews. CMA Chief Executive Sarah Cardell discussed how the vast majority of deals that came before the CMA did not raise competitive concerns, and protracted transaction reviews created uncertainty in the UK economy. Under her leadership, the CMA is working to streamline merger investigations and focus instead on key lines of inquiry, as well as publishing shorter merger decisions. Regulators from other jurisdictions such as Mexico also discussed how an efficient and effective merger review process were essential to providing legal certainty for businesses.
Remedies remain a hot topic both in the US and abroad.
Remedies were a frequent topic of discussion both in the merger and monopolization context. Chief Executive Cardell stated that the CMA was open to genuine and effective remedies, and they planned to publish updated remedies guidance for merging parties later this year. BC Director Guarnera made it clear that the FTC was now willing to accept a merger remedy if it resolved all of the agency’s competitive concerns. Guillaume Loriot, the Deputy Director-General for Mergers at DG Comp noted that his agency had accepted only structural remedies last year, but were open to thinking about behavioral remedies like access remedies if they solved competitive issues in a transaction.
A panel including antitrust scholar Herbert Hovencamp also discussed structural and behavioral remedies in the context of Section 2 monopolization cases, noting that many prior Section 2 remedies had not lived up to their expectations. The panel noted that Section 2 cases involving digital markets created unique challenges for crafting remedies proposals, as these markets are often characterized by network and scale effects without any anticompetitive conduct.
Amid changes, some continuity in the Trump administration’s antitrust agenda
The conference also focused on the similarities and differences in antitrust enforcement in the current Trump administration as compared to the prior administration. AAG Slater discussed the DOJ and FTC’s decision to keep the 2023 Merger Guidelines in place, noting it was common to keep guidelines across administrations as it takes a significant amount of agency resources to rewrite guidelines every few years. She also stated that there were many Republicans who found value in the court precedent as reflected in the guidelines, as antitrust law should be adhering to court standards. BC Director Guarnera also noted that the FTC would continue to focus on labor markets, including non-compete enforcement despite no longer defending the 2024 non-compete rulemaking initiated by the Biden administration. He encouraged all firms with non-competes to review these provisions to ensure they were in compliance with current standards.
There have also been significant changes under the new administration in the US. Many panelists spoke about the administration’s return to traditional antitrust enforcement, particularly with the revival of remedies discussions and early termination. Both AAG Slater and BC Director Guarnera noted the recently issued recommendations by the DOJ and FTC to remove 125 regulations that the agencies believed were causing anticompetitive harm in the economy. BC Director Guarnera indicated that the FTC would continue to look for anticompetitive regulations, particularly in its areas of subject matter expertise such as oil and gas, pharmaceuticals, and healthcare.
State attorneys general continue to take a larger role in antitrust enforcement.
There was significant discussion throughout the conference of the rise of state-level antitrust enforcement, including recent independent state-led actions against major companies for alleged antitrust violations. Chris D’Angelo, the Chief Deputy Attorney General for Economic Justice in the Office of the New York State Attorney General also noted that the states are willing to litigate cases, and are “litigating a whole lot more cases than we used to,” with a strong focus on labor and no poach cases. He believed that the states would play the role of “backstop” when they believed the federal government was not acting strongly enough when it came to antitrust enforcement.
However, states remained resource constrained, with one panel noting that the “Baby HSR Acts” recently passed in Colorado and Washington requiring companies to file HSRs directly with these states simultaneously did not include additional appropriations to conduct more state-level antitrust enforcement. It remains to be seen how big of a role states will take in antitrust moving forward, but there is significant interest at the state level in becoming more involved in these cases, particularly when a transaction affects the states’ interests.
Given the numerous changes in antitrust leadership across the globe, the conference provided fresh and insightful perspectives on antitrust law and policy both in the US and abroad.
