The members of BakerHostetler’s Antitrust and Competition team are pleased to present these additional brief updates from the conference sessions at this week’s ABA Antitrust Spring Meeting in Washington, D.C. Read our first two sets of conference updates here and here.

Session on ‘Enforcers’ Roundtable’

Antitrust enforcers are interested in technology’s impact on competition. At Friday’s enforcers roundtable, Lina Khan and Jonathan Kanter stated the DOJ and FTC are particularly interested in investigating how technology is used to harm competition. The two enforcers stressed that their main interest is not the technology industry but rather how technology is used in other industries to impact markets. Khan noted that the FTC recently hired technologists to bolster the agency’s expertise. These technologists were key to FTC investigations into how technology like algorithms impacts competition in markets. According to Kanter, technology can be used to control markets and fix prices in all industries, and he said the DOJ would not be doing its job if it ignored such impacts.

Session on ‘Agency Update With the FTC Bureau Directors’

The panel consisted of the heads of each of the four bureaus of the FTC. The head of competition, Henry Liu, noted that one of the bureau’s primary goals is “deterrence” and that the bureau remains very busy. It has brought several noteworthy challenges to mergers in the past year. He also thinks that the new guidelines are working and “provide transparency.” The HSR form is “remarkably close” to being finalized.

Aside from competition, the agency is outwardly proud of the work it has been doing and touts its aggressiveness in enforcement and deterrence. It has a particular focus on AI uses in consumer contexts, data privacy and junk fees. Also private equity and algorithmic collusion are policy focuses of the agency. The Bureau of Economics is growing its data analysis capacity. The Bureau of Consumer Protection has been making new rules to address perceived problems, and it believes that consumer issues are getting worse.

Regarding the merger guidelines, the non-price facets of competition are expressly addressed. The agency claims this simply reflects the realities of reviews that have been undertaken for some time. It sharpens the focus on current and emerging issues. The purpose of eliminating the horizontal and vertical guidelines was intentional: The agency no longer thinks that horizontal/vertical is a valuable way to assess transactions. Now it looks at the effects and concerns broadly, without concern for whether it is a horizontal or vertical issue. The agency indicated displeasure with the courts’ collapse of the issues back to horizontal/vertical.

Regarding the new HSR form, the agency has been working through the comments to the proposed rule and hopes to have a final rule soon. The revised form is “staff-driven” – derived from staff feedback on the information it would prefer to see in the initial waiting period. They think this will make initial reviews more efficient and effective and facilitate “more focused” second requests, possibly resulting in fewer second requests if staff can identify and/or dispel concerns up front. They indicate that the comments have been taken into serious consideration and will have a significant impact on the final rule. They strongly indicated that labor reporting will be included in the final form.

Regarding noncompetes, the staff continues to work through the comments and propose a final rule to the commission. They indicated the vast majority of the comments support a federal ban.

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