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The members of BakerHostetler’s Antitrust and Competition Team are pleased to present these brief updates from the conference sessions at this week’s ABA Antitrust Spring Meeting in Washington, D.C.
The ABA Antitrust Spring Meeting opened its Wednesday session with a panel examining how recent actions by the federal government may signal its enforcement priorities in the coming year. Panelists from across the antitrust bar discussed recent enforcement activity at the DOJ and FTC, providing observations on merger enforcement, conduct cases, interagency dynamics, and the evolving relationship between federal and state enforcers.
Focus on ‘Kitchen Table’ Issues
Speakers noted both agencies’ interest in competition issues that affect consumers’ day‑to‑day lives, including the healthcare, agriculture, food, and consumer‑facing entertainment sectors. Commentators observed that federal enforcers’ focus on these industries reflects recent trends in antitrust policy, in which enforcement agencies look to demonstrate antitrust law’s relevance to issues with broad public impact.
Panelists noted that although this focus aligns with core principles of antitrust policy, agency actions over the past year have also addressed areas such as content moderation. They observed that while these issues are not traditionally viewed as “pocketbook” matters, they illustrate the broad range of issues the agencies may choose to examine under their statutory mandates.
Recent DOJ and FTC Activity
The panel revisited several speeches from DOJ and FTC leadership made within the past year, which many viewed as helpful in understanding potential enforcement priorities. These included remarks outlining the agencies’ methodological approaches, including those referencing the text, history and structure of the Sherman and Clayton Acts, as well as references to historical statements by Senator Sherman.
The panelists noted that, consistent with prior periods, the DOJ and FTC continue to signal active enforcement in both merger and conduct matters. They emphasized that the agencies are seeking continuity and stability in their approach, pointing to ongoing large technology cases – many of which have spanned multiple administrations – as examples of sustained priorities. The discussion also highlighted the decision to retain the 2023 Merger Guidelines. Panelists observed that undertaking a full revision would demand significant agency resources, and maintaining the current framework may reflect a practical effort to conserve those resources while still supporting robust merger review.
Several commentators expressed that targeted revisions, interpretive statements, or other forms of clarification would enhance predictability for merging parties, especially in portions of the guidelines that have generated uncertainty.
Merger Enforcement and Remedies
A recurring theme of the panel’s discussion was the administration’s approach to merger enforcement and remedy negotiations. Panelists observed that the agencies have shown greater willingness to engage in early settlement discussions, including detailed negotiations around structural divestitures. Many contested matters continue to center on traditional “head‑to‑head” overlaps, and structural remedies remain the primary mechanism for addressing identified competitive concerns.
The discussion also highlighted the importance of thoughtful resource allocation in guiding merger enforcement strategy. Panelists noted that antitrust agencies must continually balance the depth of their investigations with the practical limits of staffing and time. In some cases, pursuing a remedy that addresses a substantial portion of competitive concerns while requiring significantly fewer resources can be an effective way to maximize overall enforcement impact. This approach reflects a broader recognition that sound antitrust enforcement involves not only legal analysis, but also prudent management of agency resources to ensure consistent and efficient oversight across a wide range of matters.
State Enforcement Trends
Panelists highlighted the increasingly active and independent role of state attorneys general in antitrust enforcement, discussing how states may pursue parallel investigations, seek remedies different from those pursued by federal agencies, or use their enforcement authority to express alignment or divergence from federal policy choices. Speakers observed that states have expanded their antitrust capacity through increased hiring of experienced litigators, and that public interest in competition issues has contributed to a heightened focus on antitrust as a policy tool.
Recent merger transactions were discussed as areas in which state‑level review created additional strategic considerations for merging parties, including situations where federal agencies resolved matters without state participation. Commentators emphasized that, in some instances, state challenges may continue even after federal settlements are reached, leading to uncertainty about timing and potential litigation exposure.
Broader Policy Themes
The panel discussion also addressed broader policy areas that may shape enforcement in the coming years. Topics included:
- Deregulatory initiatives, including federal agency reviews of regulations that may impose competitive burdens on nascent industries.
- Renewed attention to intellectual property and innovation, with a focus on ensuring that the antitrust laws coexist with incentives for technological advancement.
- Competitor collaboration guidelines, including the prior withdrawal of guidance without replacement. Panelists described the absence of updated guidelines as a missed opportunity to provide clarity to businesses and deter only truly concerning conduct.
- Algorithmic pricing and product quality certification, two areas where panelists suggested that additional guidance could help establish predictable, pro‑compliance guardrails in rapidly evolving commercial environments.
Speakers noted that prior administrations addressed some of these issues through case‑specific statements of interest or litigation theories, but panelists suggested that more forward‑looking guidance – such as interpretive principles or updated collaboration guidelines – could provide clearer guardrails. Several participants expressed the view that guidance should articulate the types of data practices, governance structures, and compliance protocols that agencies view as consistent with pro-competitive, efficiency‑enhancing uses of pricing technology.
Finally, panelists noted that algorithmic pricing naturally intersects with broader agency interests in transparency, market structure, and predictability.
Looking Ahead
The panel concluded by noting that upcoming personnel changes at both agencies may play a significant role in shaping enforcement approaches moving forward. Attendees identified questions about agency structure, resource allocation, and the evolving division of responsibilities between the DOJ and FTC as key issues to watch in the coming year.
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