Crowell and GWU Competition Law Center Host Sixth Annual Antitrust and Tech Conference

On May 13, 2025, Crowell & Moring and The George Washington University Competition Law Center hosted the Sixth Annual Antitrust and Tech Conference, which provided a platform for discussing pivotal issues in antitrust policy at this time of transition in leadership.

This year’s conference featured thought leaders representing diverse perspectives among practitioners, academia, and industry, focusing on recent and future merger regulation policy and monopolization enforcement, especially in light of the new administration. Our two panel discussions were followed by a fireside chat with Principal Deputy Assistant Attorney General Roger Alford, who discussed the DOJ Antitrust Division’s enforcement goals.

U.S. Merger Enforcement Policy in a Time of Transition

Following opening remarks from professors William E. Kovacic and Andrew I. Gavil, the first panel set the stage by discussing the prior administration’s impact on U.S. merger enforcement, as well as the current administration’s priorities. Moderated by Alexis Gilman (Partner, Crowell & Moring), this panel included insights from Jordan Andrew (Acting Assistant Director, Mergers I Division, Federal Trade Commission); Mary T. Coleman (Senior Managing Director and Head of U.S. Antitrust Practice, Compass Lexecon); and Diana Moss (Vice President and Director of Competition Policy, Progressive Policy Institute).

The panel discussed the issues and challenges involved in antitrust enforcement in the technology sector due to the rapidly evolving nature of digital markets, characterized by platforms and multi-sided markets, network effects, and cloud technology. According to Diana Moss, growth in this sector has often been driven by acquisitions, and historically, antitrust enforcers have adopted a cautious approach. She commented that, despite a relatively higher number of Second Requests in the tech space, few antitrust cases were initiated in recent years, and the pace of court proceedings lags the rapid changes in the industry. Jordan Andrew noted that since the first Trump Administration, the FTC and DOJ have pursued ambitious antitrust tech cases, and the agencies are now more concerned about under-enforcement than over-enforcement. In his view, the 2023 Merger Guidelines reflect what agency staff are and have been doing in merger enforcement; courts are now catching up and showing greater deference to the Merger Guidelines. Mary Coleman noted that the Merger Guidelines have general statements of enforcement policy but lack details on how they will be applied. Moss also noted that the Merger Guidelines address some specific scenarios, but not others, which may confuse courts. Andrew stated that non-tech cases (such as healthcare) offer lessons about non-price theories of harm, such as concerns about quality and innovation competition, that also apply to enforcement in technology markets. Regarding remedies, Andrew said that there may be somewhat more openness to remedies in the current administration but still a high degree of skepticism toward behavioral remedies. Moss agreed that behavioral remedies are generally ineffective, while Coleman said that courts are accepting various types of remedies litigated by the parties, so the agencies have to consider that.

Will Section 2 Enforcement Effectively Address Tech Monopolization?

The second panel focused on how the antitrust agencies have been addressing, and are likely to continue to address, single-firm conduct in technology sectors. Moderated by Jeane Thomas (Partner, Crowell & Moring), this panel included insights from Alissa Cooper (Executive Director, Knight-Georgetown Institute); John Newman (Professor of Law, University of Miami School of Law; Former Deputy Director, FTC Bureau of Competition); Jonathan Nuechterlein (Distinguished Scholar, Competition Law Center, George Washington University Law School; Former General Counsel, FTC); and John Yun (Associate Professor, Antonin Scalia Law School, George Mason University).

The panelists generally agreed that the agencies and courts have largely been successful in assessing monopoly power and exclusionary conduct in dynamic technology sectors, but the industry’s complexity demands flexibility. John Newman gave the courts a “B” grade on their recent monopolization decisions, praising their market-based approach and avoiding the pitfalls of the Ohio v. American Express decision regarding two-sided platform markets. However, he noted that courts must be careful not to go too far in evaluating conduct on an allegation-by-allegation basis but instead should consider holistically the competitive effects of dominant firm conduct. Jonathan Nuechterlein highlighted the challenges of antitrust enforcement in natural monopoly markets, including those with strong network effects, suggesting regulation as a preferred solution over complex court-imposed remedies. Alissa Cooper noted that although it may be correct to identify sub-markets within technology sectors (e.g., chat models), enforcers should recognize that these tools may be used in conjunction with other conduct to monopolize current or future markets. The big players have the ability to lock up data and maintain exclusive contracts with publishers. John Yun outlined principles for protecting future markets like AI, including recognizing market power as not inherently bad, assessing AI partnerships like other types of vertical restraints, and being cautious about regulation. Nuechterlein noted that the effectiveness of alternative approaches like the EU’s Digital Markets Act (DMA) remains uncertain and is based on a very different institutional philosophy and substantive framework. Newman noted that State competition enforcement continues to play a significant role, with broader state laws allowing victories in cases like Epic v. Apple despite federal claims being dismissed.

Fireside Chat: DOJ Antitrust Division’s Goals and Priorities

Moderated by William E. Kovacic (Global Competition Professor of Law and Policy, Professor of Law, Director of Competition Law Center, The George Washington Law School) and Andrew I. Gavil (Senior of Counsel, Crowell & Moring and Professor, Howard University School of Law), our fireside chat with Roger Alford, Principal Deputy Assistant Attorney General at the DOJ Antitrust Division, explored the Antitrust Division’s enforcement goals and policy priorities.

Alford commented that antitrust enforcement must focus on issues pertinent to the average American, such as housing, food, healthcare, transportation, and sports/entertainment, rather than solely on AI and technology markets. He highlighted the problem of overly burdensome regulations and the importance of addressing them through initiatives like the recently announced Anticompetitive Regulations Task Force. He emphasized the need for clearer rules to eliminate ambiguity, benefiting businesses, consumers, and investors. Alford also commented on the success of federal enforcers in bringing monopolization cases, winning them on traditional antitrust theories, and demonstrating the ability to handle multiple large cases simultaneously. He expects this type of enforcement to continue. He also noted that the administration’s focus has shifted towards litigation over regulation, with a preference for early terminations and consent decrees in merger enforcement.

Further details about the event, including speaker bios and a video recording of the panel discussions and fireside chat, are available here.