Competition Corner

On Tuesday, March 11, 2025, the Senate confirmed Gail Slater as the Assistant Attorney General for the U.S. Department of Justice (DOJ) Antitrust Division (Division). While Slater has been circumspect in her public comments regarding past and anticipated Division priorities, her prior experience and recent statements offer early insights into her expected approach.

A second Trump administration brings some uncertainty about the trajectory of non-merger antitrust enforcement. Under the Biden administration, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) took an aggressive approach to antitrust enforcement across several industries and were particularly hostile to mergers and acquisitions. President Trump’s nominees to lead the antitrust agencies signal that the new administration is likely to continue current levels of vigorous antitrust enforcement—particularly in Big Tech and other hot-button industries—but will likely relax M&A enforcement and return to more predictable and traditional tools and theories of harm.

On January 14, the Antitrust Division of the Department of Justice (DOJ) filed a lawsuit against private equity firm KKR & Co. (KKR), alleging KKR repeatedly violated the Hart-Scott-Rodino (HSR) Act and seeking unprecedented civil penalties of hundreds of millions of dollars. 

In early August, the U.S. Department of Justice (DOJ) entered a consent decree with Legends Hospitality Parent Holdings, LLC (“Legends”) to resolve gun-jumping allegations that Legends improperly exerted operational control over ASM Global, Inc. (ASM) while its HSR filing for its acquisition of ASM remained pending. Although the DOJ allowed the transaction to close, Legends agreed to pay $3.5 million and be subject to seven years of DOJ oversight to resolve the allegations. This action by the DOJ provides a reminder to buyers and sellers of the need to continue operating independently after a deal is signed until closing even when the deal does not present significant antitrust concerns.

On July 31, 2024, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly hosted the first public meeting of the “Strike Force on Unfair and Illegal Pricing.” This initiative was launched by President Biden in March 2024 where he emphasized the readiness of the DOJ and FTC to enforce the law in response to “illegal pricing practices that are fraudulent or unfair or deceptive or anticompetitive.”

Health care companies and stakeholders should be prepared for an uptick in antitrust complaints and investigations in the short term, driven by the launch of HealthyCompetition.gov. Despite the anticipated short-term impact, the long-term impact remains uncertain and depends on the sustained engagement and use of the tipline by the public.

AAG Blizzard’s announcement marks the latest in a trend of increasing focus and scrutiny from state-level antitrust enforcement agencies. This change suggests that many states are standing ready to address antitrust enforcement if federal enforcement, which has been reinvigorated under the Biden administration, is weakened.  

In the latest step in the U.S. antitrust agencies’ heightened enforcement against private equity, the Federal Trade Commission held a Workshop on Private Equity in Health Care yesterday with the U.S. Department of Justice and Department of Health and Human Services.

Over the past six months, the FTC and DOJ have pushed a unified message regarding antitrust enforcement. 

In analyzing a government contractor target for a proposed acquisition—such as a merger, asset sale, or stock purchase—due diligence may uncover a seller’s noncompliance with certain Federal Acquisition Regulations or other applicable regulations.

On February 3, 2023, the Antitrust Division of the U.S. Department of Justice (DOJ) announced that it had withdrawn three policy statements that established certain enforcement “safety zones” or safe harbors for the exchange of competitively sensitive information and benchmarking exercises.

After a series of withdrawals of key antitrust policy statements and guidance documents and announcing an intention to make changes to the merger guidelines, the Federal Trade Commission and Department of Justice (the Agencies) have released new proposed Merger Guidelines.

On June 27, 2023, the Federal Trade Commission (FTC) announced that it will issue a 132-page Notice of Proposed Rulemaking drafted in concurrence with the U.S. Department of Justice (DOJ) that, if implemented, would bring sweeping changes to the U.S. merger review process. The proposed changes would require merging parties reporting transactions under the Hart-Scott-Rodino Act (HSR) to collect and submit to the FTC and DOJ significantly more information than is currently reported in the HSR form, likely significantly lengthening the time and expense associated with reporting transactions under the HSR Act. Indeed, the FTC’s own estimate is that the number of hours required to prepare an average HSR filing will increase nearly four-fold from 37 to 144 hours. Although the FTC states in its press release that the purpose of the proposed changes is to improve the efficiency and effectiveness of merger reviews, the additional burden on merging parties will be substantial. 

The GCR Live – Cartels 2023 conference took place on June 7, 2023, in Washington, D.C. The agenda included a keynote address by Manish Kumar, Deputy Assistant Attorney General (DAAG) for Criminal Enforcement at the Antitrust Division of the U.S. Department of Justice, who discussed the Division’s current approach to criminal antitrust enforcement, as well as panels examining cartel enforcement in labor markets, criminal monopolization, and antitrust compliance in a shifting economy.

In the age of big data and artificial intelligence, businesses are increasingly using algorithms to make important business decisions. This trend raises antitrust concerns that companies need to be aware of. 

This week, the FTC and DOJ along with the Consumer Financial Protection Bureau, and the Equal Employment Opportunity Commission released a joint statement pledging the agencies’ commitment to enforce their respective laws and regulations and to uphold their commitment to the core principles of fairness, equity, and justice in relation to emerging automated systems.

The collection, monetization, analysis, and use of consumer data have become ubiquitous aspects of modern business in the digital age. Companies, big and small, rely on consumer data to develop targeted advertising campaigns, enhance customer experiences, and create innovative products and services. However, the increasing reliance on consumer data also presents significant and growing antitrust risks for companies operating in the digital sphere.

In another example of heightened antitrust enforcement by the Department of Justice (DOJ) under the Biden administration, on January 24, 2023, DOJ and eight states filed a civil antitrust lawsuit accusing Google of monopolizing multiple digital advertising technology (“ad tech”) products. The lawsuit reflects the continued antitrust focus at both the state and federal levels on Google.

Last year, we previewed the Department of Justice’s antitrust lawsuit seeking to block Penguin Random House’s purchase of its competitor, Simon & Schuster, as a prominent example of the DOJ’s recent increased focus on monopsony theories of competitive harm.  After a year of litigation, the case reached resolution in November, when U.S. District Court for the District of Columbia (now D.C. Circuit) Judge Florence Pan issued a decision enjoining the merger, determining it would lessen competition in the market to acquire publishing rights and therefore violated Section 7 of the Clayton Act.  

Whether tacit collusion—where firms effectively behave as though they are colluding without any direct communication expressing agreement—should give rise to an antitrust violation has long been a contested issue in the United States, with legal opinions varying and evolving over time.