Media Coverage 11.12.21
Riding a wave of bipartisan support driven by a common distrust of Big Tech, the Biden Administration has proposed the most aggressive “anti-monopoly” agenda in generations.
The President’s Executive Order on Promoting Competition is the blueprint of the agenda, reflecting the belief that many U.S. industries have become too concentrated and allowed firms to exercise market power, depress wages, stifle innovation, and transform their economic power into political influence. Ten months into the Biden Administration, Pillsbury offers its take on what all companies should know about the new antitrust regime and how to plan for it.
- The FTC may keep merger investigations open beyond the HSR Act waiting period, so contract language creating closing conditions based on the status of antitrust review must be worded precisely.
- Transaction reviews are likely to be more time consuming and costly during both an initial investigation and a Second Request, because the FTC has signaled the intention to investigate a wider scope of topics, seek greater e-discovery, and demand more onerous procedures to achieve “substantial compliance” with a Second Request.
- The benefits of any transaction where remedies may be required need to be weighed against the risk of the FTC imposing a Prior Approval term in the consent decree, which will affect the acquiring party’s incentives to prefer litigation over a consent decree and may complicate efforts to find a buyer for any assets that require divestiture.
The White House has publicly thrown its weight behind the progressive agenda of its hand-picked antitrust leaders—Lina Khan (FTC Chair) and Tim Wu (White House Competition and Technology Counsel). President Biden also has nominated for DOJ Assistant Attorney General for Antitrust another outspoken critic of “Big Tech,” Jonathan Kanter.
President Biden’s Executive Order identifies 72 initiatives aimed at increasing competition across various sectors of the economy. Those actions include revising existing antitrust enforcement policies and guidelines, commencing rulemaking proceedings, and directing agencies to conduct market research for future action. While some of these efforts were already underway at several agencies, the Executive Order announced the full support of the White House for reforms to increase antitrust enforcement to a degree unprecedented in modern times.
II. Changes in Antitrust Enforcement Philosophy
For the past 40 years, the federal antitrust agencies have viewed the objective of antitrust law as promoting consumer welfare by focusing on how any challenged business activity would impact prices in a relevant market, total output in that market, and (sometimes) the quality of goods or services in that market. In parallel, decades of Supreme Court precedents have interpreted our federal antitrust laws through the same “consumer welfare” lens.
Although a focus on consumer welfare is most closely associated with the conservative “Chicago School” of economics, more liberal “post-Chicago” economists subsequently developed justifications for more aggressive enforcement within the consumer-welfare framework. Consequently, antitrust enforcement has enjoyed substantial consensus and been relatively free of political influence in recent decades.
The Administration’s newly appointed antitrust leaders have been critics of this consensus. They argue that antitrust enforcement—even under recent Democratic administrations—has been too lax. FTC Chair Khan has promoted a return to a more populist, early-20th-century view of antitrust policy as a tool to achieve social policy goals such as reducing unemployment, raising wages, decreasing economic disparities, or otherwise promoting equity. For his part, White House advisor Tim Wu has written extensively about consolidation in the U.S. economy and the danger he sees it poses to our society and democracy itself.
The progressive agenda, however, faces entrenched judicial precedent rejecting the relevance under federal antitrust law of policy objectives other than consumer welfare. The Biden Administration is thus following a pragmatic two-pronged approach to reform.
In the long run, the Biden team has called on federal agencies to increase the clarity of antitrust rules while widening the net of conduct such rules address. To that end, the FTC and other agencies are exploring ways to regulate competition outside the traditional litigation route. But adopting new rules—and even policy guidance in some areas—will take time to implement, as will parallel efforts in Congress to adopt new or revised antitrust laws.
In the short term, the Biden Administration is limited to a combination of using the bully pulpit to discourage certain business practices and changing agency policies and procedures to raise the costs—in money and time—of disfavored business activities. Here, the FTC again is leading the way with an unprecedented spree of changes to is policies for investigating conduct and mergers.
III. FTC Efforts to Implement the Biden Blueprint for Antitrust Enforcement
A. Establishing New Legal Standards for FTC Enforcement Action
Unlike the Department of Justice, the FTC is not limited to enforcing the Sherman Act and the Clayton Act, our primary federal antitrust laws, which the Supreme Court has interpreted consistent with the “consumer welfare” standard. Instead, the FTC has separate authority under the FTC Act and an internal administrative adjudicatory system to enforce it, as well as rulemaking authority. The FTC has begun reinvigorating these unique antitrust enforcement powers in ways that could circumvent judicial precedent not consistent with the Biden Administration’s progressive antitrust agenda.
Independent Authority. Under Section 5(a) of the FTC Act, “unfair methods or competition. . . are . . . declared unlawful.” 15 U.S.C. § 45(a)(1). The FTC has always maintained that it has the authority to challenge more conduct under Section 5 than under the Sherman Act but has long exercised self-restraint in doing so. Recently, however, the FTC withdrew its 2015 Statement of Enforcement Principles Regarding Unfair Methods of Competition, thereby opening the door to a broader interpretation of its free-standing authority under Section 5 of the FTC Act.
The FTC’s progressive majority condemned the 2015 Policy Statement as an abrogation of the Commission’s “congressionally mandated duty” to combat unfair methods of competition.  In their view, the former policy “willfully surrender[ed] the Commission’s key institutional advantages” to adjudicate cases, issue rules, provide industry guidance, and conduct marketplace studies (all powers not shared with the Department of Justice Antitrust Division).
It remains to be seen how expansively the FTC may interpret and apply its Section 5 authority, but recent statements by FTC Chair Khan raise the possibility of aggressive action. In a memorandum to the agency’s staff, FTC Chair Khan broadly described the FTC’s mandate to protect “workers,” “independent businesses,” “marginalized communities,” as well as “consumers,” while supporting policy decisions based on “market structure and supply chain fragility” and “data consolidation and security vulnerabilities,” among other “macro effects.” 
Importantly, by decoupling the meaning of the FTC Act from the Sherman Act, the FTC may argue for greater deference from the courts under administrative law standards, thereby potentially distinguishing any “consumer welfare” judicial precedent that would impede the agency’s progressive agenda. At the same time, progressive voices have blurred the traditional distinction between the FTC’s antitrust and consumer projection jurisdiction—particularly with respect to data, privacy and tech—raising the possibility that the FTC may seek to regulate or challenge some actions as both traditional “unfair or deceptive” acts and practices as well as under its “unfair methods of competition” authority.
FTC Rulemaking. The FTC’s rulemaking authority derives from the 1975 Magnuson-Moss Act empowering the agency to promulgate rules that “define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce.” Since the 1980s, however, the FTC has engaged only rarely in rulemaking. But the agency has now revamped its rulemaking process to undo “decades of self-imposed red-tape.”
Consistent with the expanded antitrust priorities of the Biden Administration, the FTC’s announcement of revisions to its rulemaking procedures was accompanied by a stated commitment to use “all of our available tools” to protect consumers, as well as a “reinvigorate[d]” focus on small businesses and workers.
Given the FTC’s broadened interpretation of its own free-standing authority and the withdrawal of the 2015 Statement of Enforcement Principles Regarding Unfair Methods of Competition discussed above, it is also possible that the FTC will promulgate rules affecting not just “unfair or deceptive acts or practices” as provided under the rulemaking authority in 15 U.S.C. § 57a of the Magnuson-Moss Act, but also may consider rules regarding unfair methods of competition to prohibit conduct without regard for the “consumer welfare” standard, although such an effort may face legal challenges.
The FTC majority expects the new, streamlined procedures will lead to new rulemakings that will provide clarity and guidance to businesses regarding practices that harm consumers, allowing the Commission to exercise its prosecutorial discretion more efficiently. These changes drew sharp criticism, however, from the Republican Commissioners who argued the changes reduce transparency and objectivity in the rulemaking process.
Changes in the new rulemaking procedures include:
The Executive Order directs the FTC Chair to consider rulemaking “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” The Executive Order also directed the FTC Chair to consider rulemaking regarding “unfair data collection and surveillance,” “restrictions on third-party repair or self-repair of items,” “agreements to delay the market entry of generic drugs or biosimilars,” “Internet marketplaces,” “occupational licensing restrictions,” and “tying practices or exclusionary practices in the brokerage or listing of real estate.” Shortly after the Executive Order was released, the FTC adopted a Policy Statement on Repair Restrictions Imposed by Manufacturers and Sellers, following an agency report to Congress on the topic. While the FTC has yet to announce proposed rulemakings on these topics, it may more quickly adopt policies consistent with such objectives, as it did with the “right to repair.” Further policy change priorities are addressed below.
B. Changing FTC Policies to Discourage Unwanted Business Activity.
The FTC’s administrative processes for interpreting its Section 5 independent authority and for promulgating new rules both will take time. But the agency has also taken immediate steps to revise its policies and practices in ways that have already affected investigations and merger reviews. Critically, the FTC’s policy changes have made it simpler for agency staff to pursue investigations and made it costlier and more complicated for parties to attain merger clearance.
1. Enforcement Strategy Changes
Broader Focus. Chair Khan has declared that the agency will investigate the possibility of harms to workers and small businesses, not just consumers.
Strategic Priorities. Chair Khan also identified targets at which to channel limited agency resources, so that “enforcement actions can have the greatest impact” across the economy, including:
Target Industries & Activities. The FTC adopted a series of resolutions that target specific segments of the economy to allow for easier investigations by simplifying the procedure for staff to issue compulsory process. As a result, FTC staff may now issue subpoenas or civil investigative demands in those segments with authorization from only a single Commissioner, whereas other investigations will still require a majority vote. The affected segments are:
2. Substantive and Procedural Changes to Merger Review
Early Termination Terminated. FTC (joined by the DOJ) announced the indefinite suspension of early termination of the Hart-Scott-Rodino (HSR) Act waiting period, which was the exclusive mechanism to allow transactions that raised no possible competitive concerns to close more quickly.
Extended/More Costly Investigations. The FTC Bureau of Competition announced that it may not be able to complete preliminary merger investigations within the statutorily proscribed time periods under the HSR Act. Thus, parties that get through the HSR waiting period without receiving a Second Request may still be the subject of an active investigation. In such cases, the FTC now sends the parties a letter advising that the investigation is still open and that they will close at their own risk.
Expanded Investigations. The FTC Bureau of Competition announced that it will be expanding the scope of merger review investigations to include: “how a proposed merger will affect labor markets, the cross-market effects of a transaction, and how the involvement of investment firms may affect market incentives to compete.”
Additional Process Requirements. The FTC has also announced changes to the beginning and end of its Second Request investigations. At the outset, the agency will no longer negotiate on the scope of e-discovery sought by the Second Request until after the parties have produced specific information on their employees and data systems. And when parties are completing their production in response to the Second Request, the agency will no longer accept abbreviated privilege logs, as it had been doing since at least 2017.
Resurrection of “Prior Approval” Requirements. Earlier this year, the FTC rescinded a 1995 policy statement limiting the use of “Prior Approval” requirements in consent decrees to resolve problematic mergers. “Prior Approval” requirements in consent orders bar companies from closing transactions in the same market as where the agency concluded a consent decree was necessary to prevent consummation of an unlawful transaction. The FTC now endorses “routinely” using Prior Approval requirements, because the progressive Commissioners believe the threat of Prior Approval discourages companies from pursuing serial acquisitions in concentrated markets and preserves agency resources by avoiding unnecessary litigation. In contrast, the Republican Commissioners cautioned in a dissenting statement that the new Prior Approval policy statement may perversely discourage settlement without discouraging problematic transactions, thus leading to more litigation and a greater drain on agency resources.
Retraction of Vertical Merger Guidelines. The FTC also agreed in a contentious vote to withdraw the Vertical Merger Guidelines issued jointly with the DOJ just last year. Now, the FTC asserts the guidelines relied on “unsound economic theories that are unsupported by the law or market realities,” despite most antitrust practitioners’ view that the 2020 guidelines are a restatement of established agency practice. The DOJ, in contrast, has limited its recent statements to on the Vertical Merger Guidelines to a commitment to “careful review” and “close scrutiny” while working “closely with the FTC to update them as appropriate.”
IV. Rapid Implementation of the Biden Antitrust Agenda Threatens Collegiality and Bi-Partisan Support.
Initial indications are that the Biden Administration is willing to take aggressive, internal measures to advance its antitrust agenda within federal agencies. Propelled by the explicit backing of the White House Executive Order, a relatively smooth confirmation hearing for Chairwoman Khan, and bipartisan distrust of Big Tech, the Biden FTC has shown a willingness to dispense with longstanding traditions to swiftly advance its agenda.
The FTC is an agency with a proud history of “collegiality” over the past three decades regardless of which political party has been in control. This tradition usually resulted in bipartisan action on most matters, and it has been fundamental to the FTC’s perception of legitimacy, at least until recently. The new Democratic majority’s sharply worded criticism of previous FTC enforcement, however, has been met by equally sharp retorts from the Republican Commissioners. The minority has publicly called out radical changes in internal processes, and a 1,000-word statement by Commissioner Wilson criticizing some of the merger policy changes was reportedly removed from the FTC’s website.
This breakdown of FTC collegiality—one of the last bastions of bi-partisanship in Washington—may have negative long-term effects on the FTC’s legitimacy as an institution. It may also foreshadow the coming of an era in which antitrust enforcement may seesaw with changing administrations to a degree not seen since the 1980s. In the short run, the majority’s aggressive approach may have been driven as much by a philosophical belief that antitrust enforcement has been off course for 40 years as by a practical desire to move as quickly as possible before temporarily losing control of the Commission (due to Commissioner Chopra’s long-anticipated departure for the CFPB) or potentially losing the majority on Capitol Hill in the mid-term elections.
Antitrust law has evolved to where it is today over many decades of academic scholarship in law and economics—influenced by the Chicago School—being incorporated into Supreme Court precedent. It is unrealistic to expect it will all change in one or even two terms of a Presidency, but the rapid pace with which the FTC is enacting procedural changes this year suggests that once the Biden Administration fills its third Democratic seat on the Commission, we can expect to see further significant antitrust policy changes.
Pillsbury is closely monitoring implementation of the Biden blueprint for antitrust enforcement. For additional questions about how the new enforcement regime may impact your business, please reach out to any of the authors or reach out to your regular contact at Pillsbury.
 Executive Order on Promoting Competition in the American Economy (Jul. 9, 2021), online at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.
 See Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Comp. L. & Prac. 131 (2018) (discussing the historical roots and modern goals of the neo-Brandeisian movement), online at: https://academic.oup.com/jeclap/article/9/3/131/4915966; Khan, Lina M., Memo from Chair Lina M. Khan to Commission Staff and Commissioners Regarding the Vision and Priorities for the FTC (Sept. 22, 2021), online at: https://www.ftc.gov/public-statements/2021/09/memo-chair-lina-m-khan-commission-staff-commissioners-regarding-vision.
 Wu, Tim, The Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports 2018) (“The road to fascism and dictatorship is paved with failures of economic policy to serve the needs of the general public.”).
 “This Court has rejected substantially similar requests from litigants seeking special dispensation from the Sherman Act on the ground that their restraints of trade serve uniquely important social objectives beyond enhancing competition.” Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2159-60 (2021) (“[T]he Sherman Act … is predicated on one assumption alone — ‘competition is the best method of allocating resources’ in the Nation’s economy.”).
 FTC, Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act (Aug. 13, 2015), online at: https://www.ftc.gov/system/files/documents/public_statements/735201/150813section5enforcement.pdf
 FTC, FTC Rescinds 2015 Policy that Limited its Enforcement Ability under the FTC Act (Jul. 1, 2021), online at: https://www.ftc.gov/news-events/press-releases/2021/07/ftc-rescinds-2015-policy-limited-its-enforcement-ability-under
FTC, Statement of Chair Lina M. Khan Joined by Commissioner Rohit Chopra and Commissioner Rebecca Kelly Slaughter on the Withdrawal of the Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act (Jul. 1, 2021), online at: https://www.ftc.gov/system/files/documents/public_statements/1591498/final_statement_of_chair_khan_joined_by_rc_and_rks_on_section_5_0.pdf.
 The FTC is scheduled to decide at its next public meeting (Nov. 18, 2021) whether to undertake a major study of the impact on competition of ongoing supply chain disruptions, requiring information be gathered by large retailers and suppliers.
 Khan, Chair Lina M., Vision and Priorities for the FTC (Sept. 22, 2021).
 See id. (“[W]e need to address rampant consolidation and the dominance that it has enabled across markets. This will require both finding ways to strengthen our merger enforcement work as well as generally focusing our resources on scrutinizing dominant firms, where lack of competition makes unlawful conduct more likely.”). The FTC has policy statements regarding the interpretation of “unfair” and “deceptive” practices. See FTC, Policy Statement on Unfairness (Dec. 17, 1980); FTC, Policy Statement on Deception (Oct. 14, 1983).
 15 U.S.C. § 57a.
 FTC, FTC Acting Chairwoman Slaughter Announces New Rulemaking Group (Mar. 25, 2021), online at: https://www.ftc.gov/news-events/press-releases/2021/03/ftc-acting-chairwoman-slaughter-announces-new-rulemaking-group.
 FTC, FTC Votes to Update Rulemaking Procedures, Sets Stage for Stronger Deterrence of Corporate Misconduct (Jul. 1, 2021), online at: https://www.ftc.gov/news-events/press-releases/2021/07/ftc-votes-update-rulemaking-procedures-sets-stage-stronger.
 FTC, Statement of Commissioner Rebecca Kelly Slaughter: Regarding the Adoption of Revised Section 18 Rulemaking Procedures (Jul. 1, 2021), online at: https://www.ftc.gov/system/files/documents/public_statements/1591522/joint_rules_of_practice_statement_final_7121_1131am.pdf.
 FTC, FTC Votes to Updte Rulemaking Procedures, Sets Stage for Stronger Deterrence of Corporate Misconduct (Jul. 1, 2021), online at: https://www.ftc.gov/news-events/press-releases/2021/07/ftc-votes-update-rulemaking-procedures-sets-stage-stronger.
 See e.g., NYU School of Law, Institute for Policy Integrity, Petition for Rulemaking Concerning Drip Pricing (Jul. 7, 2021), online at: https://policyintegrity.org/documents/Petition_for_Rulemaking_Concerning_Drip_Pricing.pdf
 FTC, Dissenting Statement of Commissioners Christine S. Wilson and Noah Joshua Phillips (Jul. 9, 2021).
 Executive Order on Promoting Competition in the American Economy, Section 5(g).
 Id. at Section 5(h).
 FTC, Policy Statement of the Federal Trade Commission on Repair Restrictions Imposed by Manufacturers and Sellers (July 21, 2021); FTC, Nixing the Fix: An FTC Report to Congress on Repair Restrictions (May 2021).
 Vision and Priorities for the FTC, at 1.
 Id. at 2.
 Id. at 2-3.
 Id. at 3.
 Id. This priority is illustrative of what appears to be a growing interest among antitrust officials to blur the traditional lines between antitrust and “consumer protection” jurisdiction.
FTC, FTC Authorizes Investigations into Key Enforcement Priorities (Jul. 1, 2021), online at: https://www.ftc.gov/news-events/press-releases/2021/07/ftc-authorizes-investigations-key-enforcement-priorities.
 Vedova, Holly, Bureau of Competition, Adjusting merger review to deal with the surge in merger filings (Aug. 3, 2021), online at: https://www.ftc.gov/news-events/blogs/competition-matters/2021/08/adjusting-merger-review-deal-surge-merger-filings
FTC, Model Letter (Aug. 3, 2021), online at: https://www.ftc.gov/system/files/attachments/blog_posts/Adjusting%20merger%20review%20to%20deal%20with%20the%20surge%20in%20merger%20filings/sample_pre-consummation_warning_letter.pdf
 Vedova, Holly, Bureau of Competition, Making the Second Request Process Both More Streamlined and More Rigorous During this Unprecedented Merger Wave (Sept. 28, 2021), online at: https://www.ftc.gov/news-events/blogs/competition-matters/2021/09/making-second-request-process-both-more-streamlined.
 Hoffman, D. Bruce, Bureau of Competition, You can’t certify substantial compliance with just a “Partial Log” (Sept. 28, 2017).
 FTC, FTC Rescinds 1995 Policy Statement that Limited the Agency’s Ability to Deter Problematic Mergers (Jul. 21, 2021), online at: https://www.ftc.gov/news-events/press-releases/2021/07/ftc-rescinds-1995-policy-statement-limited-agencys-ability-deter.
 FTC, FTC to Restrict Future Acquisitions for Firms that Pursue Anticompetitive Mergers (Oct. 25, 2021), online at: https://www.ftc.gov/news-events/press-releases/2021/10/ftc-restrict-future-acquisitions-firms-pursue-anticompetitive.
 FTC, Dissenting Statement of Commisioners Christine S. Wilson and Noah Joshua Phillips (Oct. 29, 2021), online at:https://www.ftc.gov/system/files/documents/public_statements/1598095/wilson_phillips_prior_approval_dissenting_statement_102921.pdf.
 FTC, Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary (Sept. 15, 2021), online at: https://www.ftc.gov/news-events/press-releases/2021/09/federal-trade-commission-withdraws-vertical-merger-guidelines.
 Koenig, Bryan, DOJ, FTC Finalize Vertical Merger Guidelines, Law 360.com (Jun. 30, 2020), online at: https://www.law360.com/articles/1288021/doj-ftc-finalize-vertical-merger-guidelines.
 DOJ, Justice Department Issues Statement on the Vertical Merger Guidelines (Sept. 15, 2021), online at: https://www.justice.gov/opa/pr/justice-department-issues-statement-vertical-merger-guidelines.
 As of today, the statement is not available to the public on the FTC web site, but it is available from other sources. See Nylen, Leah, FTC’s Wilson Decries Merger Changes, Politico (Aug. 10, 2021), online at: https://www.politico.com/newsletters/morning-tech/2021/08/10/ftcs-wilson-decries-merger-changes-797064.