Insights

Washington – February 22, 2019: Crowell & Moring LLP’s Antitrust Group has again been recognized as “Highly Recommended” in Global Competition Review’s (GCR) 19th edition of the “GCR 100” – the leading ranking of the world’s competition policy law and economics practices. This marks the fourth year in a row in which the firm was ranked as “Highly Recommended” in Washington, D.C. and New York. Additionally, the group was ranked as “Recommended” in California. GCR is the leading international journal of competition policy and regulation.

Washington, D.C. – July 12, 2016: Crowell & Moring is pleased to announce that Andrew I. Gavil, a former office director at the Federal Trade Commission (FTC) and a leading academic authority on antitrust law, has joined its Antitrust Group in Washington, D.C. as senior of counsel.

This week, after months of anticipation, the Antitrust Division of the Department of Justice and the Federal Trade Commission issued draft revised Merger Guidelines containing 13 principles that the Agencies use as a framework for evaluating all forms of transactions. As widely expected, the Draft Guidelines harken back to 1960s-era legal precedents and seek to roll back the modern structural presumptions adopted in the 2010 Horizontal Merger Guidelines. They also express a far more skeptical view of the benefits of mergers in ways that would subject more mergers to challenge. At the same time and in line with current DOJ and FTC practices, the Draft Guidelines expressly expand the reach of merger reviews into labor markets, take a skeptical view of serial acquisitions, add new provisions for multi-sided platforms, and espouse broader theories of harm.

The Supreme Court yesterday heard oral arguments in Axon Enterprises v. The Federal Trade Commission and Securities and Exchange Commission v. Cochran, both of which present the question whether parties to administrative enforcement actions can promptly challenge the authority and structure of the agencies in federal district courts, or must await the conclusion of the administrative proceedings to raise their objections in the courts of appeals, as is provided for in the FTC Act, the Securities Exchange Act, and the Administrative Procedures Act. The two cases come at a time when the Supreme Court has been receptive to complaints about administrative agency authority and at least some of the justices appeared ready to clear the way for Axon and Cochran to return to the district courts to pursue their wide-ranging challenges to the authority of the FTC and SEC, respectively. 

The DOJ and FTC announced on Tuesday that they are jointly reviewing the most recent versions of both the Horizontal and Vertical Merger Guidelines, and invited public comments on a wide range of issues detailed in a lengthy Request For Information. The RFI itself and the announcement of the review signal that the agencies are aligned in making significant changes to the merger guidelines, both to expand the scope of issues covered by the guidelines and to reflect an approach rooted in older case law that would support much more stringent merger scrutiny and enforcement.

The 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.

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. 

Please join us online for this half day program that will analyze and assess FTC and DOJ merger enforcement in the past year and then look forward to what implications their policy priorities may have for tech (and beyond). The program, hosted by Professor William E. Kovacic, Director, Competition Law Center, George Washington University Law School, and Professor Andrew I. Gavil, Senior of Counsel, Crowell & Moring, will consist of two panels and a fireside chat. More details are below. 

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?