Sights and Sounds from the Antitrust Section’s 2025 Spring Meeting

Antitrust experts from across the globe convened in Washington, D.C. on April 2-4, 2025, to discuss new enforcement policies and share updates on current issues in antitrust. We provide the key highlights from numerous panels and speeches at the 73rd Annual Spring Meeting of the American Bar Association Antitrust Law Section and other programs from the week featuring top leaders for antitrust under the second Trump administration. Topics include merger review and antitrust enforcement under the new leadership at the U.S. Department of Justice’s Antitrust Division (DOJ) and the Federal Trade Commission (FTC), on the state-level, and in international jurisdictions, covering sectors such as technology, artificial intelligence, labor, and pharmaceuticals.

A. Enforcement Trends Across the Globe

Updates from U.S. Federal Enforcers

Despite the notable absence of U.S. federal enforcers at this year’s Spring Meeting, Assistant Attorney General (AAG) Gail Slater for the DOJ Antitrust Division and FTC Chair Andrew Ferguson spoke about their enforcement priorities at a concurrent conference hosted by Capitol Forum and FGS Global on April 2 and at other public-facing events last week.

Targeting Monopolization. Both Slater and Ferguson commented on the role of antitrust enforcement in protecting ordinary Americans and signaled continued focus on monopolization. “Government intervention to prevent monopoly is good . . . [T]he biggest threats to competition [and] to human flourishing are big government and big monopoly,” Ferguson said. Slater observed that the lawmakers behind the Sherman Act “were very concerned about the aggregation of private power.” Slater also spoke about the DOJ Antitrust Division’s new Anticompetitive Regulations Task Force, which aims to “eliminat[e] . . . laws and regulations that undermine free market competition and harm consumers, workers, and businesses.”

Technology Platforms. On April 3, 2025, the DOJ Antitrust Division hosted a Big-Tech Censorship Forum, where Slater, Ferguson, and Chair Brendan Carr of the Federal Communications Commission shared their concerns about monopolization in the technology sector. They emphasized that the consolidation of private power in technology companies has contributed to an “unprecedented surge in censorship” of free speech in the form of deplatforming.

Labor Markets. At the Capitol Forum/FGS Global conference, Ferguson highlighted labor market competition as an FTC priority under the Trump administration. He announced earlier this year the launch of a Joint Labor Task Force that would investigate anticompetitive labor practices, including, for example, non-competes and no-poach agreements. On April 5, 2025, the DOJ Antitrust Division hosted a roundtable discussion with worker advocates, legal experts, and economists about the impact of non-competes, no-poach agreements, and other unfair labor practices on people’s livelihoods.

Impact of Tariffs. The enforcers also provided insights into the implications of the recent tariffs for market competition within the U.S. Principal Deputy AAG Roger Alford for the DOJ Antitrust Division observed that aggressive tariffs imposed against foreign countries can remove foreign companies from certain markets and incentivize higher prices among the remaining domestic competitors. In such situations, antitrust enforcement is essential to counter conduct that would harm American consumers. Ferguson similarly cautioned in a recent tweet, “[t]hese necessary tariffs should not be interpreted as a green light for price fixing or any other unlawful behavior.”

Enforcers’ Roundtable

The Enforcers' Roundtable at this year’s Spring Meeting offered valuable insights into competition policy and enforcement trends around the world. The panelists addressed the evolving landscape of competition law, global coordination, transparency, and innovation.

Enforcers’ Perspectives

• Teresa Ribera, Commissioner for Competition at the European Commission (EC), highlighted the importance of a well-functioning market and effective consumer protections, and advocated for global cooperation and dialogue for enforcers to adapt to market evolution.
• Elizabeth Odette, Chair of the Antitrust Task Force for the National Association of Attorneys General, discussed the value of strong relationships between state enforcers and federal enforcers. She underscored the growing role of state attorneys general’s offices in merger review and enforcement.
• Andreas Mundt, President of Bundeskartellamt (German Federal Cartel Office), discussed balancing structural and economic approaches in competition law, and cautioned against political influence over competition agencies.
• Alexandre Cordeiro Macedo, President of CADE (Brazilian antitrust authority), emphasized clear consumer standards and market definitions and advocated for competition protection to foster innovation.

Key Topics

• Cartel Enforcement. Panelists noted the flat number of cartel prosecutions in the U.S., which they attributed to factors like the COVID pandemic and the auto parts cartel from a decade ago. However, they observed that ongoing efforts to invest time and resources in forensic technology and leniency programs may soon reverse this trend.

• Tech Sector and Digital Markets. State enforcers continue to focus on technology companies, while the Bundeskartellamt closely reviews digital markets.
• Algorithmic Collusion. Concerns call for guidelines on transparency and accountability.
• Merger Review. New HSR form (a notification required for certain mergers and acquisitions) in the U.S. aims to improve competition enforcement by mandating more comprehensive information from merging parties, enabling the DOJ and FTC to be more selective in the mergers they challenge and to make well-informed decisions early on. The international enforcers observed that merger review has evolved due to market dynamics; the current economic challenges highlight more innovation-related theories of harm rather than traditional theories focused on price or quality.
• Pharmaceutical Industry. Recent enforcement actions focus on drug pricing affordability and deceptive practices.

The roundtable concluded with the panelists calling for increased efforts to protect consumers and ensure fair competition across the global economy by continued cooperation among enforcers, clear antitrust objectives, and enforcement free from political interference.

Antitrust Under Trump

Former FTC Commissioner Rebecca Slaughter, former FTC Chair William Kovacic, and current Colorado Attorney General Phil Weiser discussed the second Trump administration and the prospects for antitrust enforcement.

FTC Minority Commissioners. Slaughter and the panel expressed concerns about President Trump’s dismissals of her and former FTC Commissioner Alvaro Bedoya. Slaughter cautioned that such actions could affect the bipartisan decision-making process at the FTC if commissioners can be removed at any time. Kovacic noted that the ability to remove a commissioner at will undermines the FTC’s credibility as an expert body before federal judges.

Mergers and Enforcement. The panel agreed that there could be more enforcement under traditional theories of harm and more willingness to settle under the second Trump administration. Slaughter cautioned that the president may use antitrust and merger review to assist allies, including by harming their competitors.

Role of State Attorneys General. Colorado Attorney General Weiser emphasized that the states are ready to step up on antitrust enforcement, though resource constraints remain a challenge.

DOGE and One Agency Act. Slaughter noted that resource constraints also affect federal antitrust enforcement, especially given the Department of Government Efficiency's recent mandate on federal workforce reduction. According to Kovacic, the One Agency Act likely lacks sufficient support in Congress, as Senate democrats are cautious about increasing presidential power if the DOJ retains complete jurisdiction over federal antitrust enforcement, while the Senate Committee on Commerce, Science, and Transportation would be reluctant to give up its oversight over the FTC. Panelists also discussed the interplay between the consumer protection and competition functions of the FTC, expressing their concerns that even if the FTC could keep the commission’s consumer protection branch, it would not be able to carry out its mandate effectively.

Overview on State Enforcement

Several panels addressed the evolving role of state antitrust enforcement. Representatives from the attorneys general’s offices of Colorado, Maryland, New York, Pennsylvania, and Nevada discussed the increasing significance of state-level actions in addressing antitrust violations, which often occur separate from federal actions.

Stand-Alone State Enforcement. Panelists agreed that state enforcers may choose to bring cases separate from federal enforcers—or on their own, if federal enforcers choose not to act—to develop state antitrust laws and establish new precedents. Separate state actions can expedite resolutions, compared to waiting for large coalitions led by the U.S. DOJ or FTC. State enforcers also can tailor claims to address specific impacts on local populations.

Litigation in State vs. Federal Courts. Panelists noted that state courts often have less experience with complex antitrust cases, which require state enforcers to spend more time educating and proactively proposing solutions. Edward Olszewski from the Ohio Attorney General’s Office advised against assuming that state and federal courts operate identically.

Deputizing Outside Counsel. Panelists expressed different opinions about using outside counsel to pursue antitrust enforcement actions. Aaron Ford from the Nevada Attorney General’s Office highlighted the benefits of outside counsel, including resources and expertise, and cited successful examples like past opioid litigation. Tracy Wertz from Pennsylvania Attorney General’s Office noted the state’s preference for representation by the office of the attorney general.

2022 State Antitrust Enforcement Venue Act. Panelists emphasized the Act’s protection of state attorney general actions from multidistrict litigation (MDL) transfers and the impact on state-level actions. Schonette Walker from Maryland Attorney General’s Office noted that state enforcers can now bring their cases with more confidence. Wertz noted that the Act gives state enforcers the opportunity to litigate state-specific issues in a local forum.

State Legislative Efforts. Panelists touched on state legislative efforts to strengthen antitrust laws. Colorado Assistant Attorney General Conor May described a recent overhaul of Colorado’s antitrust laws that aims to enhance enforcers’ ability to bring claims and streamline procedures. Elinor Hoffman from the New York Attorney General’s Office emphasized expanding antitrust laws and continuing to “push the envelope” by bringing forward novel theories of harm that private litigants are less likely to raise.

State Criminal Antitrust Enforcement

State attorneys general similarly are poised to play a more prominent role in addressing criminal conduct. State-level enforcers from California, Minnesota, and Wyoming have expressed their commitment to continue pursuing criminal cases, which may lead to more significant state-led enforcement actions.

Local Detection and Indictment. Panelists highlighted the states’ readiness to bring criminal cases and noted increased public awareness of the benefits of antitrust enforcement. Although states lack leniency programs to encourage voluntary disclosures, they instead rely on public interest to identify anticompetitive conduct, especially at the local level. Local bid-rigging cases are good examples of the growing interstate partnerships and demonstrate the importance of addressing even small-scale violations.

Joint State Efforts. Historically, states have prioritized civil antitrust actions, but new collaborative efforts may shift the focus to criminal enforcement. Zach Biesanz from the Minnesota Attorney General’s Office discussed the Bid Rigging and Criminal Enforcement Working Group (BRACE) formed two years ago that facilitates collaboration among approximately 70 members from 30 states. BRACE’s recent training event, which attracted participants from 14 states, sought to equip enforcers to tackle criminal cases effectively.

States as Independent Enforcers. Paula Blizzard from the California Attorney General’s Office emphasized that states should not be seen merely as “gap fillers” in criminal antitrust enforcement. States have distinct obligations to pursue criminal cases and should not depend solely on federal leniency programs. Panelists reviewed alternative tools, such as non-prosecution agreements, that states can utilize to encourage disclosure of criminal conduct.

Global Cartel Enforcement

Government enforcers from the European Union (EU) and Brazil, alongside U.S. practitioners, discussed global trends in cartel enforcement and provided insight into the expansion of cartel enforcement in emerging markets and the focus on new forms of collusion.

Environmental, social, and governance (ESG). Maria Jaspers, Director of the Cartel Directorate at the European Commission (EC), addressed the EC’s 2023 ESG guidelines, which aim to enhance transparency in enforcement priorities and encourage ESG initiatives from businesses. A U.S. practitioner believed that U.S. enforcers were not likely to treat ESG initiatives differently from other potentially anticompetitive agreements and noted that U.S. enforcers could pursue such agreements with increased rigor under the Trump administration. Alexandre Cordeiro Macedo, Superintendent General of the CADE, indicated Brazil’s alignment with the U.S. in not offering an “ESG exception.”

Information-sharing. The panel discussed the DOJ Antitrust Division’s withdrawal of policy statements and safe harbors on information-sharing and the corresponding uptick in criminal enforcement against certain information-sharing practices. Practitioners were concerned that the lack of clear guidance from enforcers poses challenges to businesses. In response, international enforcers acknowledged the difficulty of providing upfront guidance in a world where new types of information arise rapidly. The enforcers further commented on the difficulty of proving harm in information-sharing cases, given the nuanced and complex weighing of potential harms and procompetitive benefits.

Labor markets. Macedo emphasized that buying cartels in the labor market fall firmly under Brazil's antitrust laws. Jaspers highlighted the EC’s investigations into labor markets, including no-poach arrangements, but noted that many cases fall under national and local jurisdictions.

The New Dawn of Dawn Raids

Global practitioners discussed the resurgence of dawn raids as a key investigatory tool across multiple jurisdictions and offered practical guidance for businesses to prepare for unexpected visits from enforcers.

Panelists observed that dawn raids have been robust in Europe, both by the European Union and competition authorities on the national level. Although the U.S. DOJ does not publicly disclose details about dawn raids, the media have reported continuing enforcement. Multijurisdictional coordination also is becoming increasingly common. The panel also emphasized the benefits of dawn raids, which are effective in motivating businesses to cooperate or seek leniency, often proving “worth the scare.” The shift to digital document storage has reduced the logistical costs of dawn raids, eliminating the need for extensive physical document retrieval.

Panelists highlighted some preparation strategies for businesses.

• Clear, Targeted Guidance. Companies should offer targeted guidance tailored to each jurisdiction’s legal framework and account for the risk of evasion and potential destruction of evidence.
• Cooperation with Enforcers. Post-raid cooperation may still yield benefits, as enforcers may seek additional collaborators.
• Ephemeral Messaging Policies. Aligning with the U.S. government’s expectations, companies should establish preservation policies for ephemeral messaging to minimize complications during enforcement actions.

B. Trends in the Technology/AI Sector

Tech Enforcement Updates

A panel of practitioners and a corporate counsel examined recent lawsuits and enforcement actions targeting technology companies, offering insights into the potential trajectory for the tech industry under the second Trump administration.

U.S. Enforcement. Panelists observed increased bipartisan collaboration in Congress on antitrust scrutiny of technology companies. Both the Biden and Trump administrations have highlighted concerns regarding protecting innovation driven by newer, smaller participants. Panelists discussed the extent to which the Biden administration litigated weaker cases to advance the law, while anticipating the Trump administration would show greater openness to remedies prior to litigation.

The panel also discussed notable cases against technology companies. For example, in Microsoft – Activision (N.D. Cal. 2022; Ninth Cir. 2023), the district court rejected the FTC’s challenge to a merger, based on arguments that the merger would stifle competition by denying rivals’ access to popular games and upgrades. The court found Microsoft’s remedies sufficient, including its commitment to keep the popular game Call of Duty on rival platforms. The deal has since closed, despite FTC’s appeal before the Ninth Circuit. In other cases, including those alleging monopolization, the DOJ—even under the Trump administration—has insisted on structural remedies, including divestiture, to remedy perceived anticompetitive effects.

European Perspective. The panel also discussed the EC’s enforcement under the Digital Markets Act (DMA), which targets technology companies considered gatekeepers and focuses on regulatory compliance rather than proving specific effects or harm. Since the adoption of the DMA in 2022, the EC has issued preliminary findings of non-compliance following investigations into, for example, gatekeepers’ interoperability operations and advertising models.

Issues in the AI Stack

Practitioners and academics also discussed trends at the intersection of competition enforcement and artificial intelligence (AI). Panelists reviewed the global regulatory landscape, antitrust risk and challenges in the AI sector, and AI’s impact on traditional markets.

Global Regulatory Landscape. Opinions varied on the need for robust ex ante regulation in the AI industry. Some panelists argued for increased regulation based on current understanding of industry incentives. Others cautioned against over-regulation in a rapidly changing industry and raised concerns that premature regulation could stifle innovation.

Panelists also weighed the risks and benefits of different regulatory approaches. The market-driven approach, exemplified by the U.S., allows innovation to develop within existing legal frameworks. Europe’s rights-driven approach relies on consumer rights behind AI development. CADE Commissioner Victor Oliveira Fernandes explained Brazil’s leaner version of the European model, focusing on protecting small and medium enterprises and granting CADE authority to investigate AI tools, including inspecting source code and training data.

Antitrust Risk and Challenges. Panelists anticipated continued antitrust scrutiny on AI platforms in the U.S. and Europe. Both the EC and UK’s Competition and Markets Authority (CMA) have conducted studies on antitrust risks in the AI stack, focusing on potential choke points like data centers and cloud computing. The rapid innovation in AI has led to new deal structures, such as staff acquisitions and IP licenses, which remain under regulatory interest.

Panelists acknowledged challenges reviewing AI markets using existing framework. They highlighted the complexity of defining AI markets due to the blurred lines across the AI stack. Traditional tools for assessing market power, such as the Herfindahl-Hirschman Index (HHI) and the Small but Significant and Non-transitory Increase in Price (SSNIP) test, according to panelists, may be insufficient for the rapidly evolving AI industry.

Impact on Traditional Markets. Panelists also explored AI’s influence on traditional markets, especially through algorithmic collusion, and highlighted enforcement actions that have targeted third-party AI providers facilitating coordination among competitors. Notable cases include the DOJ’s litigation against RealPage in the U.S. and CADE’s investigation into Brazilian retail fuel providers. Panelists agreed that AI cartel cases will remain a priority globally.

Panelists suggested that effective antitrust enforcement in the AI sector should begin with open communications between regulators and industry participants. This collaborative approach would allow the industry to educate enforcers and address antitrust concerns proactively, ensuring that AI’s benefits are not hindered by regulatory constraints.

“Big Data” and Market Power

A panel of academic and professional economists explored the economic debate on how “Big Data” can confer market power and support theories of anticompetitive harm.

Data Utilization and Competitive Advantage. One panelist highlighted that while technology companies use data and algorithms to enhance efficiencies, more data does not always equate to a competitive edge. Large datasets can become redundant and introduce noise. Advancements in AI also are enabling smaller companies to leverage Big Data, challenging the bigger players.

Barriers and Opportunities in Data Access. Another panelist noted that while acquiring valuable data can be costly and a barrier to entry, access to certain data can lower entry costs for new market players, as seen with DeepSeek’s entry as an open-source alternative in the AI sector. This is more feasible in the U.S., where datasets are typically not copyrighted, than in countries like Germany and other jurisdictions, where they are subject to greater protection.

EU Regulations. A panelist from Europe discussed EU regulations like the General Data Protection Regulation (GDPR), which limit data collection and can hinder tech platforms from creating valuable data profiles. Germany’s recent enforcement has linked GDPR breaches to abuse of dominance. The DMA also imposes data-sharing obligations, potentially enhancing competition but possibly reducing business incentives to collect data.

Enforcement Actions. Panelists cited cases like Change – United Healthcare to illustrate how U.S. and EU enforcers challenge mergers involving data assets. Remedies in such cases often involve data silos or sharing requirements. Dominant firms may also use data to foreclose rivals, though refusal-to-share theories are unlikely to be raised or succeed in the U.S. as compared to the EU. However, in the U.S. and elsewhere, there is growing enforcement against using competitor data in algorithmic pricing tools that lead to higher prices or reduced output.

C. Continuing Focus on Labor Issues

Labor Market Competition

A panel of practitioners, economists, and Arthur Biller of the Colorado Attorney General’s Office discussed the ongoing regulatory and litigation focus on labor market competition.

The panel reviewed significant enforcer guidelines and enforcement actions in the past decade related to enforcers’ scrutiny of labor markets.

2016 Antitrust Guidance for Human Resource Professionals. In these guidelines, the DOJ signaled its intent to criminally prosecute unlawful no-poach and non-solicitation agreements. DOJ has largely been unable to do so, with every criminal no-poach case resulting in a loss, except for one plea agreement.

2023 Merger Guidelines. Unlike previous guidelines, the 2023 guidelines explicitly address labor markets and buyer power. The economists reflected on unique challenges in the labor market analysis required under the guidelines, which include defining the relevant labor market and accessing relevant employment data.

Penguin Random House – Simon & Schuster (D.D.C. 2021). The DOJ alleged that if allowed to go forward, the merged entity would have monopsony power that would impact best-selling authors’ compensation. The court agreed with the DOJ’s market definition, ruling that the merger would suppress authors’ earning potential, in violation of antitrust law.

Kroger – Albertson (D. Org. 2024). The FTC, joined by eight states and the District of Columbia, included with its traditional arguments regarding the anticompetitive effects of the transaction the argument that it would harm union grocery workers because it would substantially increase the merged entity’s bargaining power over the workers’ wages, benefits, and working conditions. The court granted a preliminary injunction based on consumer market harms but found that the plaintiffs did not present sufficient economic evidence for anticompetitive effects in the relevant labor market. The parties abandoned the transaction.

The Non-Compete Rule

A panel of practitioners and an economist examined the FTC’s 2024 rule banning most non-compete clauses in employment, addressing its legal challenges, economic implications, and future prospects. Originating from a 2021 Biden Executive Order advocating a whole-of-government antitrust approach, the rule was finalized in April 2024.

Economic and Legal Perspectives. Panelists in favor of the rule highlighted the negative impact of non-competes on low-wage workers, as well as research indicating that non-compete bans could raise wages in states such as Oregon and Hawaii. Other panelists raised concerns about the rule, questioning the FTC’s authority to enact such a rule and noting that a universal ban would disincentivize investing in employee training.

FTC Enforcement Strategy. Panelists also debated the FTC’s shift from case-by-case enforcement to broad rulemaking. One panelist argued in favor of the need for a federal rule due to state-level inconsistencies and challenges faced by low-wage workers. Others acknowledged that state enforcement is viable but can be costly and slow.

Litigation and Future Prospects. The non-compete rule has been challenged by private businesses and the U.S. Chamber of Commerce in four federal jurisdictions. Notably in Ryan LLC v. FTC (N.D. Tex. 2024), the district court issued a preliminary injunction, finding the FTC exceeded its rulemaking authority. In March 2025, the appellate court granted a stay in that case at the request of the Trump FTC seeking time to consider the pending appeal from the Biden administration. Panelists agreed that the FTC might abandon the appeal or rescind the rule but noted that, either way, the FTC would still have the authority to challenge anticompetitive non-competes and expect continued bipartisan support for such enforcement.

D. Pharmaceutical Sector Under Antitrust Microscope

This panel of practitioners and an economist explored recent trends in pharmaceutical merger review and the outlook under the second Trump administration.

Changes to Merger Review Criteria. Prior to 2017, pharmaceutical merger reviews focused on whether the merging parties had products treating the same condition, severity, and delivery method. The FTC under the Biden administration introduced three new theories of harm in pharmaceutical transactions: (1) bundling products to force competitor exit or prevent entry, (2) harm to innovation and R&D, and (3) harm to nascent competition. These theories also are reflected in the 2023 Merger Guidelines.

Outlook Under the Second Trump Administration. One panelist expressed optimism for a quicker merger review process, noting that approvals for pharmaceutical transactions during the Biden administration often took months. With the return of early termination, pharmaceutical transactions, particularly those involving pipeline products, could be expedited. Another panelist highlighted the likelihood of strong antitrust enforcement under traditional theories of harm, drawing parallels to the first Trump administration. The Trump administration’s openness to remedies and consent decrees may enhance the efficiency of merger review.

E. Strategies for Merger Clearance

Strategies to “Fix” a Merger

Practitioners, including a former FTC attorney, explored the evolving strategies to “fix” mergers, with their discussion focusing on “fix it first” and “litigating the fix” approaches, along with the antitrust agencies’ treatment of remedies.

Rise and Impact of Fix Strategies. Under the Biden administration, there was a notable increase in “fix it first” and “litigating the fix” strategies, where merging parties proactively addressed competition issues prior to agency notification or proposed remedies early in litigation. In negotiating these solutions, the parties and the agencies disagreed on the relevant standard, with the enforcement agencies insisting on remedies that fully replace pre-merger competition, while the merging parties argued that remedies only have to prevent the substantial lessening of competition.

Development of Merger Case Law. The panel highlighted the Biden administration’s aggressive approach to vertical mergers, where agencies were less willing to accept remedies and more eager to litigate than under previous administrations. This approach shaped the merger remedy legal landscape in two significant ways. First, the most recent vertical merger cases underscored the difficulty in proving anticompetitive effects in vertical mergers, with courts requiring the government to present more robust evidence to support its claims. Second, recent decisions showed the courts’ willingness to accept behavioral remedies, particularly when these remedies are clearly defined and binding on the merging parties.

Openness to Behavioral Remedies. In contrast to the Biden administration’s approach, the Trump administration and the agencies’ new leadership have signaled openness to appropriate behavioral remedies. This shift reflects a preference for addressing competition concerns through consent decrees rather than litigation, paving the way for more mergers to proceed with agreed-upon fixes.

Below-Threshold Mergers

Practitioners from the U.S., Canada, and Europe discussed the increase in regulators reviewing transactions below the applicable merger control threshold, offering guidance to firms engaged in transactions across these jurisdictions.

United States. U.S. practitioners highlighted two key developments. First, the 2023 Merger Guidelines indicate an increased focus by the DOJ and FTC on non-reportable transactions “when an industry undergoes a trend toward consolidation” or when they are “part of a series of multiple acquisitions.” (Guidelines 7 and 8). Second, the new HSR form requires the acquired entity, not just the acquiring entity, to report prior transactions in a product overlap. Panelists noted that the increased information on prior transactions and the broader document filing requirements with the new HSR rules could provide more information for the agencies to use in investigating prior non-reportable transactions.

Canada. A Canadian practitioner observed that Canada’s Competition Bureau has used its authority aggressively to review mergers deemed problematic, noting that “merger” is defined broadly and can include, for example, joint ventures. The Bureau has formed a task force to specifically look at potentially problematic, non-reportable transactions, including one valued as low as $8 million.

Italy. An Italian practitioner discussed the Italian Competition Authority’s (ICA) guidance on its new authority to call in below-threshold mergers. Firms are advised to engage in discussions with the ICA and consider potential complaints from competitors or customers to determine whether to voluntarily notify the ICA of a below-threshold merger.

F. Developments in Class Action Litigation

Moderated by Hon. Jon S. Tigar (N.D. Cal.), a panel of practitioners and Professor Alexandra Lahav of Cornell Law School explored current trends and developments in class action litigation.

General Trends. Panelists noted that the plaintiffs’ bar is pursuing liability theories that federal enforcers have retreated from, such as algorithmic price-fixing and self-preferencing. Plaintiffs are increasingly relying on statutes typically enforced by consumer protection regulators as vehicles for class actions.

Uninjured Class Members. The panel addressed the issue of uninjured plaintiffs within proposed classes. The Supreme Court’s decision to grant certiorari in Davis v. Lab’y Corp. of Am. Holdings could significantly impact class certification, because, despite its not being an antitrust case, the lower court’s decision addresses the permissible number of uninjured class members.

Fail-Safe Classes. The panel also addressed fail-safe classes, where class membership depends on having a valid claim. Some courts, like the First and Eighth Circuits, reject such definitions outright, while others allow for refinement of the class definition to address the issue.

Indirect Purchaser Suits. The panel examined the ongoing relevance of Illinois Brick v. Illinois, 431 U.S. 720 (1977), which prevents indirect purchasers from recovering for antitrust violations. With over 30 states enacting Illinois Brick “repealer” statutes and the Class Action Fairness Act allowing removal to federal court, panelists argued that the intended efficiencies of Illinois Brick are undermined by complex MDL litigation involving both federal and state claims.