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Thou Art Weighed In The Balance –And Found Wanting? Evidence in Government Merger and Monopolization Litigation

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For the better part of a year now, U.S. competition enforcers have been telling anyone who will listen that the old way of doing business is dead. Citing a “once-in-a-century inflection point in terms of [the] reach of corporate power,” Assistant Attorney General for Antitrust Jonathan Kanter recently claimed a mandate to “update and adapt our antitrust enforcement to address new market realities.” FTC Chairwoman Lina Khan likewise told reporters that her agency would no longer invest in drawn-out settlement negotiations with parties seeking merger clearances, and instead would “focus [its] resources on litigating” those cases. And former Deputy Assistant Attorney General Richard Powers made waves when he announced that the Antitrust Division would not “shy away from bringing criminal monopolization charges” in the right circumstances.

These policymakers are not limiting their ambitions to just filing more cases. Instead, they aim to expand the ambit of antitrust concern beyond the criteria that dominated jurisprudence over the last half century: price, output, and quality. The new guard contends that a myopic focus on those criteria (and the consumer-welfare standard they embody) not only is inconsistent with statutory and case law origins, but that it also gave rise to decades of underenforcement, a legal and economic quagmire in the case law, and a systematic neglect of competitive dimensions that resist measurement or quantification. Antitrust law and enforcement has to adapt, they say, to remedy the sins of the past and ward off the insidious competitive problems of the future.

For courts, practitioners, academics, businesses, and anyone else keeping score, the agencies’ policy goals and renewed appetite for litigation raise a series of burning questions. We examine two of them in this article: First, what type of evidence will the agencies muster as part of their antitrust-law reframing project? Second, are the agencies making progress towards those goals? We examine these questions in the context of merger and monopolization enforcement, two focal points of the agencies’ aggressive new posture. The early indications are that the agencies are positioning new categories of evidence as a supplement, rather than a replacement for traditional evidence of price, output, and quality impacts. As to the second issue, we conclude that courts are weighing the agencies’ new evidentiary approaches within the balances of traditional consumer-welfare criteria, implying that litigants fighting the agencies in court should continue to make price, output, quality, and innovation the focus of the narrative. In short, yesterday’s debates will continue to resonate today.