We are in the midst of some of the most significant developments in US antitrust law in decades. The Biden Administration is seeking a sea change away from the consumer welfare standard (price, output, innovation/quality) in place since the 1970s to a new focus on concentration ratios and broader social welfare goals, which harken back to antitrust views in the 1960s. These developments have resulted in a multitude of proposed legislation and administrative rule making that, if implemented, would bring the United States more in line with the European Union (EU), although it remains to be seen whether these proposals will be tempered through the political process or challenged in litigation. This swirl of proposals culminated in President Biden's sweeping "Executive Order on Promoting Competition in the American Economy," issued on July 9, 2021, which "establishes a whole-of-government effort to promote competition in the American economy." The Executive Order "includes 72 initiatives by more than a dozen federal agencies to promptly tackle some of the most pressing competition problems across our economy." The extent and impact of these initiatives will take several months if not years to play out.
What is certain, however, is that the US antitrust agencies dramatically will increase the breadth and scope of their investigations of mergers/acquisitions and anticompetitive practices and will be more aggressive in bringing enforcement actions, which may yield an increase in follow-on private litigation. This means that the pace of investigations will be slower as agency staff and economists delve deeper into both theoretical and actual competition issues and may request broader divestiture remedies packages. It also means that consumers and competitors likely will play an increased and more important role in participating in the investigatory process, especially where the agency may seek to block a transaction. To this end, staff will request an increasing number of interviews, investigational hearings and documents from both parties and non-party witnesses.
Here's what you need to know, broken down by industry:
- Financial institutions
- Life sciences and healthcare
- Technology and innovation
- Alcohol beverages
- Infrastructure, mining and commodities