Uptick in Antitrust Litigation Predicted Under Biden Administration

FTC Commissioner Noah Phillips and George Washington Law School Competition Law Director William E. Kovacic, who once chaired the agency, appeared on a webinar today (March 16, 2021) hosted by the Information Technology and Innovation Foundation (ITIF). Aurelien Portuese, ITIF’s Director of Antitrust and Innovation Policy, asked the speakers what we might expect from the Biden administration in terms of antitrust law, reform, and enforcement.

“[Litigation] can also result in losses and legal rulings that don’t favor the agencies.”

Commissioner Phillips answered first:

“I think that the aggressiveness that's going on in court right now will increase. I think you'll see more litigation. What effects that will have I'm not sure. That can result in more antitrust, if you will, but it can also result in losses and legal rulings that don't favor the agencies. But I do think you'll see more litigation.

“One thing I think you will also see is an increasing attempt to slow M&A generally that isn't necessarily as strictly related to competition concerns as historically folks might have agreed upon. For example, last summer there were a number of members of Congress … [who] introduced legislation to affect a broad band of all M&A activity. And that isn't just mergers. This includes equity purchases that meet the Hart-Scott-Rodino threshold. That didn't come into place, but it was made by some pretty prominent people.

“More recently, the acting chair of the agency announced the end of early termination where -- companies that believe they don't present any issue competitively -- can come to the agency and say, ‘Hey, can you just let my deal go through?’ With one exception of which I'm aware we're not doing that right now. We did allow, as of Friday, some more exceptions where the agencies have issued Second Requests and resolve whatever concerns they have. But interfering with market operations or transactions where no one has a competitive concern is a novelty, and I do think it speaks to a broader skepticism of M&A markets than we have seen before.

“The other thing that I predict … you will see attempts to make competition rules under FTC's current authority. I am skeptical about that authority in the first place, but I do think the attempt will be made. What rules we get [and] whether they would stand court scrutiny … is another question.”

President Donald J. Trump nominated Phillips to be a Commissioner and the Senate confirmed him unanimously on April 26, 2018. Before coming to the FTC, Phillips served as Chief Counsel to Sen. John Cornyn of Texas on the Senate Judiciary Committee.

“They have denigrated the significance of what's already on the way.”

In addition to his role as Director of the Competition Law Center at GW Law School, Kovacic is Global Competition Professor of Law and Policy. Kovacic chaired the FTC from March 2008 to March 2009. He was a member from 2006 to 2011, and before that, he was the FTC's General Counsel.

He began his answer as probably anyone should when making these kinds of predictions:

“I have some predictions. I'll back them all up with the price of a single espresso drink of the coffee shop of your choice ….

“On litigation, the new leadership in many ways is committed to doing much more and, in an exaggerated way, they have denigrated the significance of what's already on the way. They're going to discover in a hurry how hard it is to bring the matters that are in flight already to a successful landing. They'll discover how ambitious that agenda is, and they'll have to spend time bringing those things home. But because they have made such a point of saying the past enforcement was desperately inadequate – and the cases like [those brought against] Facebook and Google ‘are just a good start’ – there will be inevitable and irresistible pressure to do more. So, I think both the Department of Justice and the FTC will launch new major [Sherman Act] Section 2 cases. Who knows who the targets will be, but they'll have to do it. They're going to have to add new matters in both the merger and non-merger categories to the existing enforcement agenda. A big question: can they run all those cases effectively with what they have?

“Second, I think Noah is absolutely right: there is inexorable pressure now to use existing FTC authority to use rulemaking to promulgate new principles of competition policy. Maybe the target for that will be non-compete clauses, but I think it is impossible for the new leadership of the FTC not to bring a new trade regulation rule and to try that. They staked a lot of their reputational capital on that.

“A last issue I’ll raise, I think we're going to have a basic debate about the future framework of antitrust enforcement. They're going to be several events that bring the authority of the FTC into view. The current [AMG Capital Management LLC v. FTC case currently before the Supreme Court] that deals with disgorgement [the question before the court is: Whether Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. 53(b), empowers a district court to award equitable monetary relief in a civil enforcement action brought by the FTC]. [There will be] new debates about the authority of the FTC to get other remedies. If you bring a rulemaking case, it's going to ultimately bring the question of the soundness of the FTC's authority to do competition rulemaking into focus.

“If we do have new privacy legislation who becomes the privacy regulator? I think we're going to have a basic decision during the Biden administration about whether we keep two national agencies in the competition field. Does the FTC become the new data protection authority? Does it become a super-authority with both data protection, consumer, and competition as it is now? And what is the framework of authority and power spread across our national agencies? In short, we're going to face and have a debate and reconsideration of the framework through which we implement policy.”