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Antitrust Enforcement in 2021: What to Expect from the Biden Administration

Megan Browdie

Jacqueline Grise

Howard Morse

Cooley LLP

Antitrust law is on tap in all corners of the Biden Administration, from amped up enforcement at the Department of Justice and Federal Trade Commission to initiatives to advance competition policy brewing within the White House. We expect a strong focus on high tech, life sciences, and labor markets. And, an important open question is whether Congress—with Democrats in control—will enact legislation to overhaul the antitrust laws.

This article explores our predictions on all these antitrust issues of the day, which businesses should be watching.

 I. Expect Aggressive Antitrust Enforcement Under the Biden Administration

Even before the recent election, there has been growing support for beefed up antitrust enforcement. Antitrust law is viewed as key to addressing increasing consolidation and what some see as powerful tech and life science companies allegedly gobbling up nascent competitors. This shift in the political winds predates the Biden Administration, but will certainly fill its sails.

Some argue that the Trump DOJ and FTC were already aggressively enforcing the antitrust laws, including filing landmark monopolization cases against some of the biggest names in tech in the last few months. Others, however, argue that the Trump Administration was slow to bring those cases and point to reduced criminal and merger enforcement, and to political interference in antitrust enforcement to argue there is a need to chart a new course. Regardless of one’s view of the past, we can expect the Biden Administration to aggressively move forward.

The Biden Administration is moving swiftly to get its antitrust house in order. Reports indicate that Biden will appoint an antitrust “czar” to serve in the White House, focused on competition policy; he is also filling positions at the DOJ and FTC, with others to come.

Examining Joe Biden’s record on antitrust enforcement builds our baseline for predictions going forward. During his thirty-six years on the Senate Judiciary Committee, Biden had a moderate record on antitrust, supporting the Hart-Scott-Rodino Act, which transformed merger enforcement, but joining with Republicans to oppose legislation that would have authorized “indirect purchasers” to recover damages in antitrust suits, which would have overruled the Supreme Court’s Illinois Brick decision. But presciently, while on the campaign trail, Biden argued, “I don’t think we spend nearly enough time focusing on antitrust measures. And the truth of the matter is, I think it’s something we should take a really hard look at.”

At DOJ, Biden has nominated Merrick Garland as Attorney General. Garland is the current Chief Judge of the D.C. Circuit, nominated by Barack Obama to serve on the Supreme Court but blocked by the Republican-controlled Senate in 2016. Garland will bring substantial antitrust expertise to the DOJ, having taught antitrust and published law review articles on the topic, but he will likely leave most antitrust decisions to the yet-to be-named Assistant Attorney General who will lead the Antitrust Division.

President Biden, Vice President Kamala Harris, and Garland have all been consistently clear on one point, though: the Justice Department will operate independently of the White House, responding to allegations of Trump interference with the DOJ.

Meanwhile, at the FTC, there are now two open Commission seats (Chairman Simons, who has resigned, and Commissioner Chopra, whose term has expired and is slated to head the Consumer Financial Protection Bureau). Within a few months—after Senate confirmation—we can expect the Democrats to have a 3-2 majority. President Biden has already named Democratic Commissioner Rebecca Slaughter to serve as Acting Chair, and she will likely name new Directors of the Bureaus of Competition, Consumer Protection, and Economics to take office even before there is a permanent chair at the Commission.

 II. With Democrats Controlling Congress, Antitrust Legislation Is Far More Likely

Antitrust law is viewed, by both the left and the right, as key to addressing many perceived ills of our time—industry consolidation, loss of privacy in big tech, and high drug prices—whether or not real. With the new Congress, in which the Senate is controlled by the Democrats, significant changes may be on the horizon to the antitrust laws, which have been changed little in more than 100 years: the Sherman Act of 1890 and Clayton and FTC Acts of 1914 have been the basis for most enforcement.

As an example of the consensus on the need for increased antitrust scrutiny, the House Judiciary Committee Subcommittee on Antitrust issued a Digital Competition Report in October 2020 concluding that “the antitrust agencies failed, at key occasions…to protect the American people from abuses of monopoly power.” The Republican response expressly agreed that the report “accurately portrays” how big tech has used its “monopoly power to act as gatekeepers in the marketplace, undermine potential competition, and pick winners and losers.”

While the Republicans did not agree with all of the Democrats’ recommendations, they did signal that it may be appropriate to shift the burden of proof in merger challenges, which would be a marked change from current law. In another instance of bipartisan consensus, both sides of the aisle agree that additional resources are warranted for the DOJ and FTC. Indeed, Congress has already increased the DOJ and FTC budgets for 2021 by approximately 7.5% over 2020 funding levels.

Congressional oversight of antitrust law and policy will undoubtedly be heightened in the Senate, with Amy Klobuchar, the presumed new chair of the Senate Antitrust Subcommittee, and in the House, with David Cicilline continuing to chair the House Antitrust Subcommittee. Klobuchar has introduced legislation, the Anticompetitive Exclusionary Conduct Prevention Act (AECPA), which would shift the burden of proof when a firm has a 50% or higher market share, to prove that alleged exclusionary conduct does not present an “appreciable risk of harming competition.” Klobuchar is writing a book about antitrust, to be published in April, indicating her serious interest in the topic.

Whether or not such major legislation passes, one bill seems likely to become law, at least if the FTC loses its ability to obtain monetary relief in court. The issue is currently before the Supreme Court in AMG Capital Management, LLC v. FTC with many predicting an FTC loss. The FTC has recovered billions of dollars for consumers in both antitrust and consumer protection cases over the last forty-five years, relying on Section 13(b) of the FTC, but that statute on its face only authorizes preliminary and permanent injunctions. Legislation has already been introduced to ensure the FTC has authority to obtain monetary relief and seems likely to pass, but what standard will be adopted remains to be seen.

While most Republican antitrust enforcers have described current antitrust law as “sufficiently robust to handle competition problems” and “flexible and resilient in enabling enforcers to challenge conduct that harms competition,” politicians on both sides of the aisle have critiqued the efficacy of antitrust laws. For example, the day before Biden’s inauguration, President Trump’s antitrust chief, on his way of the office, called for “legislative reforms” including introducing “bright line rules” and “alter[ing] the burdens of proof in civil merger cases in order to effectively combat certain excessive market concentration.”

Bottom line, we are likely to see major antitrust legislation debated, and potentially passed, during 2021, given the current political concern with market concentration and dominant firms, and trending bipartisan support for increased antitrust policing. A few enforcement actions rejected by the courts, which is possible if the Biden Administration gets too aggressive, will only make legislation more likely.

 III. High Tech, Life Sciences, and Labor Markets Likely to Continue to Top the Enforcement Agenda

Increased antitrust scrutiny will likely focus intently on high tech, life sciences, and labor markets in the coming years.

Agency Focus on Acquisitions of Nascent Competitors in Pharma and Tech Industries, and Other Disruptive Competitors: In response to pressure to address perceived consolidation in the high-tech sector, the DOJ and FTC have each recently filed monopolization suits against some of the biggest tech companies that include allegations that acquisitions of nascent competitors constitutes illegal monopolization under Section 2 of the Sherman Act.

Challenges to future acquisitions of nascent competitors are likely to result in even more headlines as concerns have grown about dominant firms engaging in campaigns of so-called “killer acquisitions” of nascent competitors. During 2020, for example, the DOJ sued to block Visa’s proposed acquisition of Plaid, which the parties subsequently abandoned. DOJ alleged Visa was buying Plaid to “neutralize a threat to [Visa’s] important US debit business.”

Healthcare and Pharmaceuticals Remain a Priority of the Agencies: Republican FTC Commissioner Noah Philips recently noted that “healthcare competition, broadly, has been and will remain one of the Commission’s priorities for decades.” But there are significant differences in views about the appropriate approach, particularly in pharmaceutical mergers.

The Trump Administration, for example, approved mergers among pharmaceutical companies, which drew strong dissents from the Democratic commissioners. Now Acting Chair Slaughter, for example, has argued that “the Commission [should] take a more expansive approach to analyzing the full range of competitive consequences of pharmaceutical mergers.” She has urged the FTC to pay particular attention to innovation harms in pharmaceutical mergers and has expressed concerns about proposed divestiture buyers, all of which foreshadows increased scrutiny of pharma deals in the coming years.

Agencies Dedicated to Ensure Robust Competition in Labor Markets: In October 2016, the DOJ and FTC published Antitrust Guidance for Human Resource Professionals, advising that naked “no poach” agreements between companies not to hire each other’s employees, which had previously been challenged civilly, would in the future be considered criminal.

DOJ recently made good on that promise. In December 2020, a federal grand jury, for the first time, returned an indictment to prosecute a former owner of a staffing company for wage fixing for agreeing to lower pay rates to physical therapists and assistants. And in January 2021, a federal grand jury, also for the first time, returned an indictment to prosecute a healthcare company for agreeing with a competitor not to solicit senior-level employees.

With a focus on labor markets, the Biden Administration is likely to pick up where Trump’s DOJ left off, continuing to monitor markets and bringing cases where employee wages are affected in a way that the agency alleges is anticompetitive. This is also an area of interest for State Attorneys General, which have gone even further in challenging agreements that prevent employees from accepting jobs with other firms in the same industry. Indeed, the Washington State AG spearheaded an initiative to eliminate use of no-poach practices across the United States, which it claims resulted in more than 200 companies having stopped using no-poach clauses.

For more information about antitrust enforcement under the Biden Administration, check out the authors’ Antitrust Enforcement in 2021: What to Expect from the Biden Administration program, available from PLI Programs On Demand.

Megan Browdie and Howard Morse are Partners at Cooley LLP and members of the firm’s Antitrust & Competition Practice Group. Jacqueline Grise is chair of Cooley’s Antitrust & Competition Practice Group.

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Disclaimer: The viewpoints expressed by the authors are their own and do not necessarily reflect the opinions, viewpoints and official policies of Practising Law Institute.

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