The New Antitrust Challenge

The Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ) have recently sought public comment on how to update the merger review and enforcement process to reflect “current learning about competition based on modern market realities.” The merger boom of 2021 has led both agencies to warn that concentrated market structures can harm consumers and workers while also stifling innovation. Any resulting revisions to the merger guidelines would likely result in an increase in the number of merger challenges, with novel theories of harm and renewed skepticism of efficiency claims asserted to support the merger. In addition, there have been calls from Washington, D.C. to “do something” about large technology platforms and their audience reach, financial power, and outsized influence. Elected officials, regulators, and advocates from both the left and the right of the political spectrum have expressed growing concern. Complaints about the major technology companies and platforms have ranged from perceived anti-competitive market power, election influence and misinformation, hate speech, misuse of customer data, and to stifling free speech. Will antitrust laws and the enforcement process undergo a sea change in light of the concerns about big tech and the operation of modern markets? This panel will discuss the modern antitrust challenges that companies face, and how boards should plan for potential outcomes in this space.