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The George Washington University Competition Law Center and Crowell & Moring’s Fourth Annual Antitrust and Tech Conference

The Emerging Merger Enforcement Agenda in the U.S.:
Implications for Tech and Beyond

Monday, December 5, 2022, 1:00 p.m.—4:00 p.m. ET

Panel 1: Lessons Learned from Agency Merger Challenges and Policy Developments

The agencies have sought to deliver on their promise of more aggressive merger enforcement, but have experienced mixed results in recent litigated merger challenges. Those decisions have involved both horizontal and vertical transactions before federal district courts and the FTC’s ALJ, and have been directed at a variety of industries.  Our panel will discuss: 

  • whether there are particular patterns from those recent victories and losses that may be instructive for firms in technology-driven or other industries going forward
  • how newly proposed transactions will be investigated and litigated
  • and which types of deals merging parties are most likely to successfully defend  

We will examine whether the agencies are succeeding or losing cases involving new or novel theories, in whole or in part, and whether when they lose it is attributable to what courts and the FTC’s ALJ are viewing as more speculative evidence.  We will also consider whether established burdens of proof have become so demanding that the government is rarely able to meet them and why courts have looked relatively favorably on parties’ “litigating the fix” approaches.  Finally, we will consider the controversies that have emerged with respect to the agencies’ public and non-public approaches to settlement and remedies, including their potential impact on the of merging parties’ incentives to seek negotiated resolutions in advance of agency review.
Speakers:

  • Dr. Elizabeth M. Bailey, Vice President, Charles River Associates
  • Daniel Francis, Assistant Professor, NYU Law
  • Dr. Nathan E. Wilson, Executive Vice President, Compass Lexecon

Moderator: Megan Wolf, Partner, Crowell & Moring

Panel 2: Can Looking Back Move Us Forward: Anticipating New Merger Guidelines

In January 2021, the agencies announced an ambitious goal of thoroughly overhauling their enforcement policies and merger guidelines. Promising a significant revision of the 2010 Horizontal Merger Guidelines, and following on the heels of the FTC’s disavowal of the 2020 Vertical Merger Guidelines, the January 2021 Request for Information (RFI) seemingly suggested that new guidelines will revive past Supreme Court precedent combined with a greater emphasis on what has been repeatedly referred to by the agency heads as “market realities,” with a firm eye on digital markets.  The impact of the proposed guidelines, however, will not be limited to the digital markets that inspired them. The concepts they endorse will have broader application and potentially wide-ranging implications. 

Our panel will examine the agencies’ view of how merger enforcement’s goals should be expanded, as well as their likely approach to such foundation principles as competitive effects, market definition, market power, efficiencies, potential and nascent competition, and the very language we have used in the past to describe various types of combinations, such as “horizontal,” vertical,” and “conglomerate.”  We will further discuss whether it may be more difficult than in the past to significantly alter established guidelines’ principles, in large part owing to their success in the courts. To the degree they have now been “written into law,” courts may be more resistant to changes than in the past.
Speakers:

  • David B. Lawrence, Policy Director, DOJ Antitrust Division 
  • Dr. Diana L. Moss, President, American Antitrust Institute 
  • Sean P. Sullivan, Professor, Iowa College of Law 
  • Schonette Jones Walker, Chief, Antitrust Division at Maryland Office of the Attorney General 

Moderator: Shawn Johnson, Partner, Crowell & Moring

Fireside Chat

A conversation with FTC Commissioner Alvaro Bedoya.

  • William E. Kovacic, Professor and Director, Competition Law Center, George Washington University Law School
  • Andrew I. Gavil, Professor, Howard University School of Law; Senior Of Counsel, Crowell & Moring
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