4 Antitrust Enforcement Trends for 2024

In the coming year, Federal Trade Commission (“FTC”) Chair Lina Khan and Department of Justice (“DOJ”) Assistant Attorney General of the Antitrust Division Jonathan Kanter are expected to continue to advance a more aggressive antitrust enforcement agenda.

  1. Back to the Future. Companies should expect leadership at both antitrust agencies to continue to deliver on their promise to transition the government’s approach to antitrust enforcement away from the framework that has prevailed over the last 40 years, to return to what came before it. The agencies’ joint 2023 Merger Guidelines more closely resemble DOJ’s 1968 and 1982 Merger Guidelines than the more recent guidelines they replaced, and reflect an overall skepticism of even low-to-moderate levels of market concentration (e.g., a market with five equal-sized firms) and significantly lower the standards by which the agencies say they will presume a merger is substantially likely to lessen competition. Companies undertaking strategic M&A should proceed with “eyes wide open” to the reality that for many deals the antitrust process has gotten, and will remain for the time being, significantly more burdensome than it has been historically.
  2. Using the Whole Toolbox. Both agencies will continue to employ a comprehensive approach to advance leadership’s goals. To date, the agencies have (i) leveraged unprecedented political support and involvement (e.g., President Biden’s consistent rhetoric pushing for reinvigorated enforcement; Congress’s proposed legislation reforming antitrust laws), (ii) signaled significant future rulemaking (e.g., what constitutes “unfair competition” under Section 5 of the FTC Act); (iii) aggressively utilized existing authorities in non-traditional ways to pursue designated priority areas (e.g., streamlined employment of compulsory process to assist investigations; issuing warning letters to merging parties upon HSR waiting period expiration); (iv) established aggressive new policies (e.g., 2023 Merger Guidelines); and (v) increased use of legal authorities that agency leadership argues have been under-utilized for many years, including Section 2 of the Sherman Act (monopolization) and Section 8 of the Clayton Act (interlocking directorates), and potentially also the Robinson-Patman Act (price discrimination). Companies should develop antitrust compliance strategies that account for this shifting antitrust enforcement environment.
  3. Willingness to Take Risks. Both the DOJ and the FTC recognize the statutory and judicial hurdles they face in reshaping the antitrust regime and will be willing to continue to suffer losses to make incremental gains in judicial precedent. Further, the agencies intend for the controversial 2023 Merger Guidelines to gain influence over time, not just through testing novel antitrust theories in court, but also by building “negative precedent” when parties abandon deals rather than undertaking the significant costs, delays, and uncertainty of defending their deals in court. In fact, during the Biden administration, the agencies have a losing merger enforcement record in court but claim victories resulting from 27 deal abandonments. Merging parties who are confident that their deals are lawful can still get deals done within the bounds of actual, existing antitrust law—but should prepare for a potentially more onerous process than in the past.
  4. Cross-Border Issues. 2023 saw a marked increase in foreign antitrust authorities taking interest in, and at times asserting jurisdiction over, M&A transactions that would otherwise not meet traditional jurisdictional thresholds, particularly in the tech and life sciences sectors. This trend is expected to continue in 2024, driven principally by the increased propensity of the United Kingdom Competition and Markets Authority to investigate deals even where the parties have a limited UK presence, and the increasing investigation of deals by the European Commission for potential referral under Article 22 of the European Commission Merger Regulation. Further, several jurisdictions have also implemented, or intend to implement, new thresholds requiring deal reportability for acquisitions of smaller companies with the goal to capture “killer acquisitions” (e.g., Germany, Austria). Companies should expect the profile of authorities outside the United States to grow in 2024 and remain a permanent feature of transactions in the tech and life sciences industries prospectively.

What’s Next?

In 2024, M&A processes are going to increasingly demand time and resources, with the most pronounced impact being incurred by deals that historically would not have attracted the scrutiny of the antitrust agencies. Companies should anticipate that rigorous enforcement will continue for both M&A and non-M&A activity as the U.S. agencies seek to push the boundaries on existing antitrust theories of harm, and foreign authorities seek to expand their jurisdiction to capture transactions that previously would have been beyond their reach.


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