UK: Georgetown Law’s 12th Annual Global Antitrust Enforcement Symposium
Last Updated: 11 October 2018

On September 25, 2018, Georgetown University Law Center hosted the 12th Annual Global Antitrust Enforcement Symposium. The event, which was co-sponsored by Skadden, featured keynote addresses from leaders of competition authorities in the United States and Europe as well as panel discussions by enforcers from around the world and private practitioners, which included Skadden partners Steven Sunshine, David Wales and Ingrid Vandenborre. The top enforcers at the U.S. agencies and the European Commission revealed policy positions and plans that included active antitrust enforcement of both mergers and conduct and the desire to ensure that antitrust enforcement is not too lax, as claimed by some populist commentators. Key themes included merger process reforms, continued antitrust enforcement vigilance, and a focus on technology, innovation and the behavior of large tech companies.

Merger Process Reforms

Makan Delrahim, assistant attorney general of the Department of Justice's (DOJ) Antitrust Division, gave a keynote address in which he announced new efforts to modernize the merger review process, with a goal of resolving most investigations within six months of the Hart-Scott-Rodino filing. For example, Mr. Delrahim indicated that the DOJ would allow parties to have an introductory, initial meeting with the front office of the Antitrust Division to explain the transaction and its rationale. Traditionally, these initial meetings are held only at the staff level. Mr. Delrahim also said that the DOJ will enforce deadlines and specifications in civil investigative demands to third parties, including bringing actions in court, to ensure that third parties do not delay the investigation's progress.

Also, to facilitate more efficient reviews, Mr. Delrahim stated that the DOJ would seek documents from no more than 20 custodians per party, limit depositions to 12 per party and issue a decision no longer than 60 days from the time the parties certify compliance with a second request. These limits, however, can be overruled by the deputy assistant attorney general overseeing the investigation if necessary. In exchange for these reforms, Mr. Delrahim — who cited the song "It Takes Two" as the theme for this effort — said that the DOJ expects parties to produce documents more quickly, produce data earlier and reduce privilege "gamesmanship."

Mr. Delrahim is not the first assistant attorney general to attempt merger process reforms. Past attempts have had mixed results and failed to materially reduce the increasing burden on merging parties. Today, the average merger investigation extends beyond nine months. These current efforts are welcome, but it likely will take more than aspirational goals on the scope of investigations to shorten the average duration to six months. The front office will need to play a more central role to focus investigations on key issues and allow staff to move more quickly.

In a panel focused on merger enforcement, Federal Trade Commission (FTC) Bureau of Competition Director Bruce Hoffman also noted several steps the FTC is taking to improve the merger review process. For example, Mr. Hoffman noted the publication in August 2018 of a model timing agreement, which the FTC claimed should increase transparency for merging parties undergoing an extended investigation. Some have criticized the model agreement, however, as simply providing the FTC with even more leverage in merger reviews and prolonging investigations even further. Mr. Hoffman also revealed that the FTC is beginning to collect additional data internally regarding the length of merger reviews, in an effort to identify areas where the process can be expedited.

Continued Vigilance

After the Trump administration took office, some observers expected a noticeable relaxation of antitrust enforcement compared to the robust approach the Obama administration had taken. However, the U.S. enforcers speaking at the symposium made clear that any such notions were misguided. For example, in his keynote address, new FTC Chairman Joe Simons explained that his prior experience as director of the FTC's Bureau of Competition taught him that aggressive enforcement was vital, and he intends to continue to bring nonmerger cases as well as merger challenges. Mr. Hoffman reinforced this message on the merger enforcement panel, noting that the FTC brought more merger challenges last year than in any other year, save one.

Likewise, on the DOJ side, Mr. Delrahim has been outspoken about his skepticism regarding the ability of behavioral remedies to cure illegal mergers, particularly vertical transactions, which played a role in his decision to challenge the AT&T/Time Warner transaction in 2017. Mr. Delrahim punctuated that skepticism in his keynote address by announcing the formal withdrawal of the DOJ's 2011 Policy Guide to Merger Remedies, which had indicated that conduct remedies "can be an effective method for dealing with competition concerns raised by vertical mergers." Acting Deputy Assistant Attorney General Richard A. Powers also warned that criminal antitrust enforcement by DOJ is not being relaxed, despite a decline in criminal fines, pointing out that this decline is merely the result of two cases with abnormally large fines winding down.

European Commissioner for Competition Margrethe Vestager also reaffirmed her agency's commitment to root out threats to competition, regardless of their source. In particular, she emphasized that private businesses are not the only potential causes of anti-competitive effects. Rather, sometimes governmental bodies can impede competition as well, particularly by offering subsidies to some competitors and not others. Ms. Vestager noted that such actions can harm competition just as much as actions by private enterprise. We expect the European Commission to continue to be very active in merger and conduct enforcement.

Technology and Innovation

Finally, the enforcers' remarks demonstrated that ensuring competitive markets in high-tech industries and fostering innovation are at the forefront of their agendas. For example, in his keynote address, Mr. Simons focused on the need to investigate and police unilateral practices by dominant tech firms. He added that the FTC would also investigate acquisitions by dominant high-tech companies of their nascent potential rivals. Meanwhile, on a panel of global enforcers, DOJ Deputy Assistant Attorney General Roger Alford emphasized that innovation is of significant importance, and antitrust enforcers should be careful to create an environment in which entrants can properly challenge incumbents. These comments suggest that the FTC and DOJ want to be, or at least appear, responsive to populist concerns over the increasing size and power of large tech companies — concerns that have been echoed by congressional leaders and the White House.

Technology and innovation also seem to be at the forefront of the European enforcers' minds. For example, Cecilio Madero Villarejo, deputy director-general for antitrust at the European Commission's Competition Directorate-General, raised concerns about increased consolidation in digital markets, citing the acquisitions made by large tech companies in the last decade. Likewise, Ms. Vestager argued that traditional competition laws can and should be vigorously applied to today's markets. For example, she noted that tying arrangements are not new and can pose competition concerns, even though these arrangements might now take different forms than they used to, citing the Google-Android case as an example. Ms. Vestager also referenced the recent German car company cartel case, arguing that cartel conduct limiting innovation is just as illegal as cartel conduct focused on fixing prices.

The candor of the U.S. speakers confirmed the Trump administration's interest in aggressive antitrust enforcement and highlighted that there may be less of a gap between U.S. and European Union antitrust enforcement than one might otherwise expect with a Republican administration in the U.S. And while reform to the U.S. merger review process is welcome, it remains to be seen whether those efforts will result in meaningful change.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Press Releases from this Firm
Recent Content from this Firm
By Brian V. Breheny, Marc S. Gerber, Andrew J. Brady, Hagen J. Ganem, Josh LaGrange, Ryan J. Adams, Blake M. Grady, Caroline S. Kim, Justin A. Kisner
By Scott H. Rabinowitz, David A. Schneider
By Peter Morrison, Virginia Milstead, Raza Rasheed
By James Anderson
By Geoffrey Wyatt, Jordan Schwartz, Zachary Martin
By Peter A. Atkins, Marc S. Gerber, Edward B. Micheletti
By Geoffrey Wyatt
By Brian V. Breheny, Thomas A. DeCapo, Marc S. Gerber, Richard J. Grossman, Kenneth E. Burdon, Justin A. Kisner
By Thomas A. DeCapo, Kenneth E. Burdon
By Boris Bershteyn, Karen Lent, Tara L. Reinhart, Zachary C. Siegler
Font Size:
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions