Below is a summary of some of the most important points made by antitrust enforcers who participated in panels at the ABA Antitrust Section’s annual Spring Meeting.

Merger Enforcement

• New HSR Form. Federal Trade Commission (FTC) and Department of Justice, Antitrust Division (DOJ), leadership indicated the agencies were likely only “weeks not months” away from the publication of a new Hart-Scott-Rodino (HSR) form and that it would have material differences from the previously published draft form. One leader commented that the final form would be less burdensome than the draft.
• 2023 Merger Guidelines. Both the FTC and DOJ emphasized that, as the guidelines were intended to reflect, they expect to focus increasingly on multiple dimensions of competition in merger review, including innovation, product design, labor and non-price competition. FTC Chair Lina Khan emphasized three areas of focus: (1) ensuring that the guidelines protect not just consumers but also workers, (2) establishing a method to assess acquisitions involving platforms and (3) addressing serial mergers in the same market. 
• Merger Remedies. Enforcers continued to express reservations about negotiated merger remedies. Parties that pursue transactions that pose antitrust risk should come forward early in the process with a concrete remedy that would restore lost competition and that ensures no ongoing entanglements between the parties.  

Civil Enforcement

• “Whole of Government” Approach. DOJ expressed a continued commitment to the Biden Administration’s “whole of government” approach to antitrust enforcement, including, for example, obtaining input regarding industry conditions and investigating referrals from other federal and state agencies. 
• Interlocking Directorates Under Section 8. DOJ touted its Section 8 enforcement and indicated that future enforcement will likely focus on areas such as private equity and artificial intelligence (AI).
• Digital Platforms. When pursuing enforcement in the context of digital platforms, DOJ indicated it will initially look to whether the platform is protecting value that it generated or is exploiting value that third parties developed. A DOJ representative emphasized that dominant platforms could have anticompetitive effects if they (a) engage in self-preferencing, (2) engage in conduct to protect their monopoly or (3) engage in both sets of conduct to entrench monopolies both as a platform provider and as a participant in the platform. DOJ also warned that it viewed these actions as reinforcing a monopoly through network effects.
• Healthcare. Healthcare remains a top priority for the FTC, through scrutinizing hospital mergers, analyzing the role of private equity in healthcare markets and policing patent abuse in pharmaceuticals. FTC officials expressed concern that healthcare facilities owned by private equity firms may offer a lower quality of care and engage in anticompetitive practices, including roll-ups of several competitors in a market.
• Price Discrimination Enforcement. FTC leaders expressed their intent to revive enforcement of the Robinson-Patman Act (RPA), which has been dormant for decades. The FTC specifically flagged price discrimination in the grocery segment as an area for enforcement focus. In the short term, the FTC would seek enforcement only where a favored buyer exercised market power against a seller to require the seller to engage in acts that violate the RPA. The FTC will also consider bringing unfair competition claims under the FTC Act in parallel with RPA claims. 
• Noncompete Ban. The FTC discussed the proposed rule to ban employment noncompetes, which it expects to vote to issue on April 23. The agency received over 26,000 comments, of which over 20,000 supported the rule. However, some state AGs, including in California and Utah, expressed federalism concerns regarding the proposed nationwide ban and the potential impact on states’ abilities to enforce their own laws. 
• Information Exchange. Information exchange continues to be an “area of huge interest” for DOJ. DOJ rescinded its prior safe harbors for information sharing because it believed they did not reflect modern realities, such as the rise of AI.  

Criminal Enforcement

• Leniency. DOJ emphasized that over the past five years, there has been a steady upward trend in leniency applications. In contrast to foreign enforcers that view the purpose of leniency as ensuring the applicant is better off than if they had not applied at all, DOJ’s view is that the purpose is ensuring that a conspirator is no worse off than its co-conspirator. A DOJ official said that the department has had experiences where applicants resisted being fully forthcoming or cooperative and that failures to be fully forthcoming or cooperative can jeopardize a leniency application.  
• Ephemeral Messaging Preservation. DOJ leadership reemphasized the importance of parties retaining documents in cartel investigations, including documents on ephemeral (disappearing) messaging platforms such as Telegram or Signal. DOJ also indicated that it would look at whether obstruction charges are appropriate where companies or individuals willfully fail to preserve ephemeral messages. 
• Fraud Charges. DOJ is considering sometimes charging non-antitrust offenses, such as fraud and obstruction, in conjunction with Sherman Act charges. Recently, DOJ used the crime-fraud exception to the attorney-client privilege to compel an attorney to testify against his or her client where DOJ claimed that the attorney was involved in covering up the alleged conduct. DOJ said it is exploring whether it might be able to use this strategy in other cases. 
• State Criminal Enforcement. State enforcers also expressed a desire to bring more criminal enforcement actions. The head of the National Association of Attorneys General observed that 44 states have laws that allow them to bring criminal charges for antitrust violations and that the states are actively working with DOJ (especially the Procurement Collusion Strike Force) to bring cases. The states have also formed a working group focused on criminal enforcement headed by the senior enforcement counsel for antitrust from the Minnesota AG’s office.
• European Union Cartel Enforcement. Maria Jaspers, director of the Cartels Directorate of the European Commission (EC), said that there has been a steady increase in EC leniency applications over the past few years. Jaspers emphasized, however, that roughly 50% of the Cartels Directorate’s current workload comprises cases that arose outside the leniency process. Jaspers also observed that cooperation among enforcers in different jurisdictions has increased in recent years, including for executing dawn raids.

AI

• Enforcement. DOJ and FTC are incorporating AI into their enforcement efforts by investing in AI tools to detect antitrust crimes and hiring technologists to help understand company algorithms that may facilitate collusion. Additionally, the FTC recently launched a market study to assess the competitive impacts of partnerships between big tech and AI companies.
• Algorithmic Collusion. DOJ is heavily focused on a broad array of potential antitrust issues involving AI, including algorithmic collusion. 

Environmental, Social and Governance (ESG) 

• No ESG Exemption. Chair Khan emphasized that there is no ESG exemption to the antitrust laws, and Assistant Attorney General Jonathan Kanter noted, without elaboration, that there are ways to address ESG issues that are fully compliant with the antitrust laws.
• State Enforcement. State enforcers underscored that there have thus far been no state AG antitrust actions relating to ESG and that states may have different views on what ESG-related conduct constitutes an antitrust issue. A state enforcer suggested that states could use a process similar to DOJ’s business review letters so companies with concerns about antitrust risks associated with ESG practices could obtain guidance.

For more information or questions, please contact any member of the WilmerHale Antitrust and Competition team.