In recent years, both Republican and Democratic-led antitrust agencies have pursued aggressive merger enforcement programs, litigating many cases and settling many more. However, "populist" and other progressive critics have urged the Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (Antitrust Division) to be more aggressive in their merger enforcement.1
What might more aggressive enforcement look like in practice, with a Democratic-led FTC and Antitrust Division in the Biden Administration? A series of split decisions in merger cases at the FTC offers potential answers. In these decisions, the two Democratic commissioners—Rohit Chopra and Rebecca Slaughter—outline a substantially more interventionist enforcement approach than their Republican colleagues. If the opinions expressed in their dissents become views at the FTC and the Antitrust Division during the Biden Administration, businesses would face important implications for transaction closing risks, the likelihood and type of remedies that may be imposed, and the length of investigations.2
Changes are soon arriving at the top of both the FTC and the Antitrust Division. At the FTC, Chairman Joseph Simons announced that he will resign effective January 29, 2021, along with much of the Bureau of Competition's senior staff. Moreover, the Biden transition has announced that Commissioner Chopra will be nominated to be the Director of the Consumer Financial Protection Bureau (CFPB), which means that he will be stepping down from the FTC.3 After a period of fluidity based on the timing of those departures, there will be a 3-2 Democratic majority (with a Democratic chair) once the Senate confirms replacements for Chairman Simons and Commissioner Chopra. Moreover, with the Democrats having an (albeit narrow) Senate majority, a new Assistant Attorney General for Antitrust could be confirmed quickly—in early to mid-2021.
Of course, it remains to be seen how closely the views of the new Democratic commissioners and Antitrust Division Front Office will actually align with those of the current Democratic commissioners. We explore below how enforcement at the U.S. antitrust agencies is likely to develop if one assumes that the agencies follow a path resembling the enforcement agenda described in Commissioners Chopra's and Slaughter's dissents. We also provide some practical guidance on what businesses planning potentially controversial mergers can do to prepare for this possibility.
Footnotes
1. Leon B. Greenfield, Perry A. Lange, and Nicole Callan, Antitrust Populism and the Consumer Welfare Standard: What are We Actually Debating?, 83 ANTITRUST L.J. 393 (2020).
2. Michael Acton, Democratic Party's antitrust reform agenda faces gridlock regardless of election outcomes, US FTC's Wilson says, MLEX (Nov. 19, 2020) ("[C]ommissioners Rebecca Slaughter['s] and Rohit Chopra['s] ... dissenting opinions, Wilson said, provide a 'roadmap' for how a Democratic-controlled FTC will approach mergers and antitrust").
3. Andrew Ackerman, Andrew Restuccia, and Ken Thomas, Biden is Expected to Pick Rohit Chopra to Lead Consumer-Finance Agency, THE WALL STREET JOURNAL (Jan. 17, 2021).
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