The Trump Administration’s handling of antitrust enforcement issues is generally viewed as a wild-card — meaning there are issues of concern or focus that may not fit the “traditional” antitrust enforcement model. Depending on the issue and the players, DOJ’s antitrust interest may surprise various practitioners and commentators.
Trump’s nomination of Gail Slater as DOJ’s Assistant Attorney General for the Antitrust Division was universally praised because of Slater’s highly-regarded reputation as an antitrust practitioner.
The Antitrust Division was recently hit by a scandal based on allegations that two senior officials were fired because of their opposition to DOJ’s Attorney General’s Office handling of the HPE/Juniper Networks merger. These allegations resonated with those concerned that the political side of DOJ would have undue influence in Antitrust Division decisions. This is an issue that is unlikely to draw further inquiry.
In general, antitrust merger enforcement by DOJ and the FTC has exhibited a more restrained approach that the prior Administration reflecting a real commitment to good faith resolutions. In negotiating merger settlements, DOJ and the FTC have been flexible in establishing deadlines for divestitures. For example, in the HPE/Juniper Networks merger, DOJ agreed to a six-month period for the parties to find a third-party divestiture buyer.
Additionally, the FTC has relaxed its suspension on early terminations of Hart-Scott-Rodion waiting periods. DOJ has stopped issuing letters warning parties that closing will be done at their own risk.
Both DOJ and the FTC have emphasized the importance of turning down the heat during a merger review and operating with good faith cooperation among the parties.
Negotiated settlements to merger cases are now viewed as an effective resolution. Most of these do not involve “behavioral” restrictions but adhere to the prior Trump Administration’s policy preference on “structural” remedies.
The FTC has demonstrated its own commitment to a flexible merger settlement policy.
In many areas, the Trump Administration has articulated an aggressive approach to antitrust enforcement. Big Tech and healthcare antitrust focus will continue. DOJ won its case against Google’s digital advertising business. The FTC is continuing its case against Facebook.
The Trump Administration has its sights set next on the pharmaceutical industry and its “anti-competitive behavior.” Any large pharmaceutical merger will certainly attract DOJ or FTC scrutiny. Also, DOJ’s criminal antitrust prosecutors are always looking for potential price-fixing cases, notwithstanding several prosecutions over the last ten years.
In the criminal area, DOJ’s approach has been consistent throughout Democratic and Republican Administrations. When it comes to price-fixing and bid-rigging, there is little disagreement as to the consumer harms.
DOJ, however, has not launched any large, industry-wide prosecutions in the last five years. It is not clear why this enforcement area has slowed down. Some have suggested that companies are not necessarily self-reporting under the Leniency Program as much as in the past.
This area has to be closely watched since early signs of a criminal antitrust investigation are often leaked to the press or in securities disclosures.
