Sights and Sounds from the Antitrust Section’s 2023 Spring Meeting
Sights and Sounds from the Antitrust Section’s 2023 Spring Meeting
Antitrust practitioners from around the world gathered in Washington, D.C. the week of March 27, 2023, for a series of industry meetings, centered around the American Bar Association Antitrust Law Section’s 71st Annual Spring Meeting. Antitrust enforcers and policy leaders from the around the world, including the US Department of Justice Antitrust Division (the “Division”) and Federal Trade Commission (FTC), announced new policies, and offered updates on hot topics. We provide below key highlights from the many panels and speeches.
The Spring Meeting kicked off with an update from the Division. The panel, featuring several of the Division’s Deputy Assistant Attorneys General (DAAGs) and its chief economist, first addressed the Division’s recent litigation strategy and track record. Panelists worried that concerns about chilling procompetitive transactions have led to underenforcement, and they made clear their belief that they have an obligation to bring cases when they see a violation of the antitrust laws. According to DAAG Michael Kades, “if you bring only cases, you know you will win it means you are underenforcing” because the failure to bring a case implies that the conduct is acceptable.
The DAAGs addressed other key issues, including:
Enforcement officials from Canada, Australia, the United Kingdom, the EU, Ukraine, and South Africa met to discuss global antitrust enforcement trends as well as local developments in their respective jurisdictions.
The Digital Economy. Each panelist acknowledged heightened scrutiny of the digital economy.
Curbing High Prices. Panelists also highlighted efforts to mitigate increased costs of living in their respective jurisdictions.
Enforcement Unabated in Ukraine. The chair of the Anti-Monopoly Committee of Ukraine (AMCU), Olha Pishchanska, reported that the AMCU continues to pursue its enforcement objectives despite challenges caused by the ongoing conflict with Russia.
The FTC’s Director of its Bureau of Competition, Holly Vedova, emphasized that litigation is an FTC priority. Ms. Vedova explained that litigation can lead to favorable outcomes even when the FTC does not win on the merits, highlighting the Meta/Within trial as an example because in the agency's view it established the groundwork for other nascent competition cases. The FTC’s Director of the Office of Policy Planning, Elizabeth Wilkins, discussed several timely policy issues, including an effort to increase coordination across the agency to ensure that key market harms and their root causes are being addressed.
Other announcements and key issues included:
The Division’s Acting Director of Criminal Enforcement, Emma Burnham, opened the panel by recounting recent criminal successes:
Ms. Burnham also noted that the Division’s criminal program remains busy, with several open cases and nearly a dozen upcoming trials. However, as panelists pointed out, criminal enforcement efforts have faced some challenges:
The panel also discussed recent changes to the Division’s leniency program:
On March 30, 2023, enforcers representing Attorneys General across the country highlighted the increased role of state enforcement in policing antitrust violations while also calling attention to current focus areas. Panelists identified the following industries as the focus of both current and future enforcement actions: pharmaceuticals; big tech; airlines; retail chains; and fast-food franchises. Below are some of the key takeaways:
The panel provided views from U.S. enforcers, private practice, and in-house counsel on several areas of new and renewed enforcement, including criminal enforcement of Section 2 (monopolization) of the Sherman Act, Interlocking Directorates under Section 8 of the Clayton Act, labor markets, and the leniency program.
In March 2022, the Antitrust Division announced it would increase criminal enforcement of Section 2 of the Sherman Act, which prohibits monopolization, attempted monopolization, and conspiracy to monopolize. Panelists discussed the Division’s efforts to date, when future cases may arise, and compliance tips. Assistant Chief of the Division’s San Francisco field office, Jacklin Lem, highlighted past and current cases as guideposts for the type of conduct that may lead to criminal liability, while panelists from the defense bar stressed the need for additional guidance to help clients comply with an otherwise murky area of the law.
On the heels of recent enforcement actions and public statements from the FTC and the Division regarding the Robinson-Patman Act (RPA), FTC Commissioner Alvaro M. Bedoya maintained that the RPA is still good law and should be enforced despite nearly four decades of dormancy. Commissioner Bedoya described the RPA—which forbids certain forms of price discrimination, rebates, and commercial bribery—as essential protection for small businesses because there is “no competition without small competitors and new entrants.” Other highlights include the following:
In light of the FTC’s interest in reviving the RPA, other panelists urged companies to revisit their antitrust compliance polices and training to reflect that the RPA is no longer an afterthought. To address these issues, companies should address some of the following issues:
The answers to these questions may prompt companies to revisit their antitrust compliance policies and practices in light of the agencies’ renewed focus on RPA to ensure that they do not inadvertently find themselves in the enforcement headlines.
When and how should enforcers police “self-preferencing” by a dominant company of its own products? As competition enforcers in both the U.S. and EU grapple with how to address self-preferencing by big tech companies, the compliance and enforcement landscape may become even more uncertain.
Kathleen Foote, former Antitrust Chief at the California Department of Justice, said applying a regulatory system can start the process of determining what is “inside or outside of bounds.”
The recent push by companies for greater ESG initiatives is raising numerous issues and questions for consumer protection practitioners, including ESG-centric brand advertising claims, the development of supporting studies, and the assessment of potential damages for a violation.
Panelists, including enforcers and former enforcers, discussed the FTC’s increased interest in so-called “dark pattern” website and app design. As FTC Bureau of Consumer Protection, Financial Practices Associate Director Malini Mithal explained, “dark patterns” refer to any digital design practice that tricks or manipulates consumers into taking actions they otherwise would not take. Panelists agreed that companies should expect increased enforcement and that companies could avoid risk by promoting transparency.
Recently, the question of whether new antitrust legislation is necessary—and what it should look like—has taken center stage. Despite bipartisan support for some degree of legislation in the last Congress, however, many of the most significant antitrust bills have yet to become law.
The ABA’s Spring Meeting panel, “Artificial Intelligence, Privacy, and Competition,” addressed the privacy and antitrust issues surrounding AI both in the U.S. and internationally. With the rise of artificial intelligence (AI), the panel addressed the complexities of regulating new and emerging technology.
Although the legal framework governing AI is still in its infancy, the FTC and the DOJ are keenly focused on these issues, so companies should be mindful about how that might affect potential transactions, business practices, or privacy concerns.
Pricing algorithms are gaining widespread adoption and are increasingly subject to antitrust scrutiny. On March 30, 2023, panelists discussed the extent to which algorithms can complicate enforcement and compliance efforts. How can enforcers and compliance personnel separate agreements from unilateral conduct when algorithms are involved? Can algorithms engage in anticompetitive conduct with no agreement? Is the current antitrust framework sufficient to address these issues? Below are key takeaways from the panel’s discussion:
The “Algorithms in the Spotlight” panel discussed potential antitrust and consumer protection issues associated with algorithms. As the use of algorithms becomes more prevalent, companies should be careful that their algorithms do not violate antitrust, consumer protection, or privacy laws.
As private litigation against platforms continues to grow, practitioners discussed developments since the U.S. Supreme Court’s 2019 decision in Apple v. Pepper, 139 S. Ct. 1514 (2019). There, the Court found that iPhone owners who purchased apps through Apple’s App Store could sue Apple as direct purchasers. The decision seemingly expanded the universe of potential plaintiffs for platform conduct to anybody who made purchases on the platform, and litigants have been testing its limits in the years since the Court’s ruling.
Key Takeaways from Pepper. While the universe of potential plaintiffs appears to be growing based on this decision, the practical risk and increased liability may not be.
Post-Pepper Developments. Panelists discussed post-Pepper cases involving e-commerce platforms and the extent to which courts employ a fact-intensive approach in applying old doctrine to new fact patterns. Recent examples include:
These cases and others will be fascinating to watch, as judges and juries grapple with how to apply the law to these new dynamic, and increasingly commonplace, fixtures of the U.S. and global economy.
On March 29, 2023, a panel of enforcers, practitioners, and academics discussed the treatment of ESG factors in evaluating conduct among competitors in both the U.S. and the EU. Companies and investment firms are increasingly considering ESG both in terms of how they do business and how to invest. Often, these initiatives involve agreements with competitors and can create antitrust risk. The panel observed the inherent tension that regulators face between wanting to promote socially valuable business practices while not providing an excuse for conduct that is inherently anticompetitive. Below are highlights from the discussion:
Industries + Issues