Three Important Items As The ABA’s Antitrust Spring Meeting Wraps Up
This week, antitrust experts gathered in D.C. to discuss today’s antitrust landscape and the future of competition policy. Here’s what you need to know:
1) The week started with the FTC and DOJ Annual Spring Enforcers Summit, where agency leaders doubled-down on their plan to expand Section 5 enforcement.
The FTC’s plan for expanded Section 5 enforcement, under its 2022 policy statement, departs from long-standing antitrust law and the consumer welfare standard, explains Elyse Dorsey of Kirkland & Ellis LLP. “[T]he FTC had, for decades, aligned its Section 5 actions closely with other antitrust laws, particularly the Sherman and Clayton Acts. The 2022 Statement sets all that aside. Indeed, in its opening paragraph, the Statement explains that it ‘supersedes all prior FTC policy statements and advisory guidance on the scope and meaning of unfair methods of competition’—leaving no question but that this Statement marks a new dawn for Section 5 enforcement. Relatedly, the Statement seems to walk away from the Commission’s longstanding commitment to the consumer welfare standard. For decades, the FTC has—consistent with Supreme Court instruction—placed consumer welfare first and foremost in its competition analysis. Yet nowhere does the Statement explicitly reference the consumer welfare standard. To the contrary, in several places the Statement recognizes that the FTC will consider multiple categories of harms cognizable under Section 5.”
2) CCIA’s panel on mergers in dynamic markets featured important reminders about the state of regulatory agencies, competition and innovation, and the purpose of antitrust.
— Agency skepticism: “Baker Botts #antitrust partner Taylor Owings told a panel that agencies now are skeptical as they review companies’ decisions to build, borrow or buy new innovations.”
— Competition and innovation: “During @ccianet panel, David Teece said that more understanding of innovation is needed. He said good competition can lead to innovations complementary or destructive of existing products or services.”
— What antitrust is all about: “Stanford Law prof. Douglas Melamed said at @ccianet panel all #antitrust cases come down to 2 real questions 1) did the company engage in anticompetitive conduct? 2) did that increase their market power?”
3) Finally, in an op-ed, AEI’s Mark Jamison explained that regulatory predictability is “essential for economic progress.”
It’s critical that businesses can trust regulators will follow law and reason “rather than fickle politics and ideologies,” writes Jamison. “Partnering with colleagues, building continuity, and creating an environment that encourages passionate, substantive debate are critical soft skills for a regulatory agency because they make the agency predictably principled over many years. Predictable regulation is essential for economic progress, as many studies have shown. Businesses invest more and citizens receive higher incomes in countries where businesses trust that regulators will follow laws and sound reasoning, rather than fickle politics and ideologies.”