Insights

A number of important Belgian and EU legislative changes are likely to have an impact in 2024. On the one hand, there are new laws that have been adopted and will start to bite, and, on the other, there are proposals that are expected to firm up into law.

After more than two years of preview and consultation, including thousands of public comments, the Antitrust Division of the Department of Justice and the Federal Trade Commission issued the final version of their 2023 Merger Guidelines (“Guidelines”) yesterday, December 18, 2023. As we noted when the draft guidelines were released in July, the final Guidelines both harken back to older, long-standing precedent and provide a framework for how the Agencies apply merger enforcement policy in modern economic markets. The Guidelines hold fast to the Biden administration’s enforcement policy to address harms from what they perceive to be “excessive” corporate consolidation by reinvigorating and enhancing merger enforcement. Yet, the final Guidelines show that the Agencies have responded to at least some of the criticism of the draft version, and may be more likely to align with how courts currently analyze merger challenges.

In an early test of antitrust claims based on alleged algorithmic price fixing, a federal judge dismissed a class-action complaint alleging that hotel operators conspired to unlawfully fix the prices of hotel rooms on the Las Vegas Strip using pricing software. Last week, a judge in the District of Nevada dismissed allegations that Las Vegas Strip hotel operators colluded to use pricing software to fix room rates, finding that Plaintiffs failed to plausibly allege that there was an agreement among the hotels to use the same pricing algorithm or even the same software product; which hotel operators were involved in the purported agreement; or that there was any confidential information exchanged via the software to support a “hub-and-spoke” conspiracy. The court did, however, grant Plaintiffs leave to submit an amended complaint. Thus, the case (Gibson v. MGM Resorts) provides initial guideposts for how companies using pricing software might reduce potential antitrust risks.

As federal, state, and international antitrust scrutiny of the tech industry escalates, the question is no longer whether antitrust enforcement should intensify, but how. Please save the date for the inaugural Antitrust & Tech Conference co-hosted by the George Washington University Competition Law Center and Crowell & Moring, which will focus on how antitrust enforcement involving mergers of technology companies will and should be carried out. 

The 65th Annual Spring Meeting of the ABA Section of Antitrust Law is the world's largest meeting of competition and consumer protection professionals. The Spring Meeting brings together all segments of the global competition and consumer protection community - enforcement officials, private attorneys, in-house corporate counsel, academics, judges, economists, and business people - to share knowledge about all aspects of competition and consumer protection law.

In response to the digital revolution and the increasing impact technology has on business, Competition Authorities on both sides of the Atlantic are stepping up merger control enforcement. They are revising current policies, advocating for more aggressive use of existing rules to their full potential effect, and calling for new laws and regulations where they see the need. What does this mean for companies engaging in transactions in the digital marketplace and other industries? Is it becoming harder to predict if a deal will be subject to merger control? Are some deals more likely to receive enhanced scrutiny than others? And, what are the broader implications for all sectors when Competition Authorities push the boundaries on traditional theories of harm and remedies, and prohibitions become more commonplace?    

What factors have led antitrust enforcers and legislators to express concerns about the state of merger enforcement, particularly in digital markets? Are the horizontal and vertical merger guidelines equipped to handle antitrust issues in today’s economy? How have prior transactions by the big tech companies ignited the next wave of potential merger guidelines revisions, and which specific concerns are likely to be addressed? And what should companies across all industries expect if and when the merger guidelines are updated? 

Partner Jeane Thomas will be moderating the panel "The Saga Continues: Navigating Cross-Border Discovery after Schrems II" during the ABA’s 15th Annual National Institute on E-Discovery: Practical Tools for Making the Most of eDiscovery.