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Authors: Thomas McGrath, Anna Gooding, Joseph Nasca, Zita Petrahai
‘Tis the season for change in US antitrust enforcement as the new administration is set to take office in January. President-elect Trump has started to signal his plans for the future of antitrust enforcement, with new leadership appointments to the Federal Trade Commission and Department of Justice’s Antitrust Division. In parallel, the outgoing leadership of the US agencies have released (or are set to release) a host of developments intended to cement their legacy or frustrate their successors. Here are the latest developments but stay tuned for even further news in the last two weeks of the year.
The picture of the antitrust policy for the incoming administration is starting to take shape as the transition team has put into motion new leadership appointments at the FTC and DOJ.
Gail Slater is President Trump’s pick to lead the DOJ’s Antitrust Division. Slater has a traditional background as an antitrust practitioner in the US and Europe before taking policy roles in the first Trump administration, several tech industry groups, and most recently Vice President-elect J.D. Vance’s office. Slater is expected to continue to oversee active enforcement targeting big tech, and will take over key ongoing enforcement against Google.
At the FTC, Trump designated current Republican commissioner Andrew Ferguson as Chair. He will take over as chair from Lina Khan on January 21. Mark Meador will join as a new commissioner following Senate confirmation, likely replacing Lina Khan at that time. Ferguson has said that he would take a more business-focused approach to the role but is still expected to take a proactive approach in key new areas such as online content and censorship. Until Khan’s departure, Ferguson will be chair but Democrats will maintain a 3-2 voting advantage.
The new Administration is expected to be more welcoming of mergers and acquisitions, and likely will consider divestitures that remedy competition concerns and permit deals to close, rather than go to litigation. However, these appointments signal that antitrust enforcement will still be a priority for the new administration, with particular focus on large tech companies.
In recent years, it has not been unusual for incoming antitrust leadership to revamp or withdraw guidelines endorsed by predecessors. This time, Biden’s leadership are making more changes as they head out the door.
First, on December 11 the agencies announced that they would withdraw their joint Antitrust Guidelines for Collaborations Among Competitors. Originally released in 2000, these guidelines previously informed parties on how the US agencies may assess the legality of collaborations involving competitors. In its joint withdrawal statement, the agencies noted that the guidelines “rely on outdated analytical methods that fail to capture advances in computer science, business strategy, and economic disciplines.” It’s likely the agencies were trying to undermine the Guidelines’ safe harbors, though they remain an important reference and are reflected in case law.
In November, the DOJ also issued updated guidance relating to antitrust corporate compliance programs. The guidance focuses on several crucial elements that should feature in every company’s corporate compliance program, specifically calling for restrictions related to preservation of electronic messages, document retention policies, controls associated with the use of new types of messaging platforms and technologies, including AI, and policies designed to encourage employees to report potential misconduct without fear of retaliation. See our blog post covering this topic here.
The fate of other policy guidance put in place under the current administration hangs in the balance. In particular, Republicans have suggested that they could revoke the current Merger Guidelines, recently revamped in 2023 to outline an ambitious enforcement agenda.
The agencies have also been busy in court. See below for the most notable recent actions.
Kroger-Albertsons Federal and State Court Losses
After two years of trying, and offers to divest nearly 600 stores, the Kroger / Albertsons grocery merger was finally blocked by federal and state courts. The courts cited the close competition between the parties in the distinct market for supermarkets. As the parties had sought to “litigate the fix,” the court found for that reason that the proposed remedy failed to address the harm in many markets and questioned the qualifications of the divestiture buyer C&S. While it did not rely on these theories to block the deal, the federal court also gave a strong endorsement for the FTC’s labor theories as a basis for the challenge – paving the way for future challenges.
With these decisions, Albertsons quickly terminated the merger agreement and sued Kroger in Delaware court for breaching its best efforts obligations to get the deal cleared. Antitrust risk shifting or “hell or high water” provisions are rarely litigated, and so the case will be followed closely.
Robinson-Patman Price Discrimination Litigation
Just in time for the holidays, on December 12 the FTC brought a suit against Southern Glazer’s Wine and Spirits for engaging in alleged price discrimination in violation of the Robinson-Patman Act. The FTC argued that Southern Glazer’s favored large chain purchasers of wine and spirits over neighborhood outlets and convenience stores by offering discounts and rebates without cost justifications not available or offered to smaller competitors.
Current FTC leadership seems to be testing all the tools in their toolbox, but Republican FTC Commissioners Andrew Ferguson and Melissa Holyoak issued unprecedented dissents arguing that the FTC exercised poor discretion in bringing the case, and that the complaint fails to identify harm to competition or consumers. Time will tell as to whether this case will continue to stand with the new Administration, but it is clear that price discrimination enforcement will not be a priority under the new administration.
As we previously covered here, the US agencies have finalized significant changes to the US’s premerger notification form (the “HSR Form”). While less extensive than earlier proposals, the updates to the form are expansive and significantly increase the burden of disclosure requirements. The new rules are expected to take effect on February 10, 2025, at the earliest. However, implementation could be extended if the new Administration triggers a 60-day stay when it takes office in January. In addition, there is a possibility that these new rules could be further scaled back under the new leadership or could be subject to legal challenge.
Work has not slowed down for the US antitrust agencies this holiday season, even with the impending administration change in January, and we may see more before the New Year. However, it’s certain that 2025 will be a year of new developments as new leadership takes the helm at the FTC and DOJ.
16 December 2024
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