Antitrust Enforcement: Stronger, Better Under Obama?

By November 19, 2008

Antitrust involves the prohibition of anti-competitive and unfair business practices, such as the restriction of free-trade among business entities, and the related supervision of corporate mergers and acquisitions. In the United States, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) are the primary institutions that determine whether to interfere on antitrust grounds. With the change in administration and consequent majority control of the federal government by the Democratic Party, there are mounting fears of increased antitrust enforcement. Over the past year, antitrust attorneys have criticized mergers like XM-Sirius, Yahoo-Microsoft, and the business practices of Intel. Whether similar events will be more scrutinized in an Obama Administration remains to be seen.

"If you talk to members of the antitrust division of the Justice Department, the career folks who came in before George Bush took office, there's a sense that there's not a real interest in antitrust prosecutions," the Illinois senator said in May. On his Web site, Obama states that he will “reinvigorate antitrust enforcement” as a strategy to ensure competitive markets. Some consider Obama’s words simply political stumping, and predict that his administration will maintain current antitrust standards.

James “Hart” Holden, antitrust attorney and partner at Paul Hastings Janofsky & Walker, said in a recent interview that if there were to be stronger antitrust enforcement, it would be through the DOJ, not the FTC, which he believes is already pretty aggressive on antitrust.
I would disagree that the FTC is defanged. On the DOJ, there have been some high-profile cases on the margin where they have not made a challenge and people wonder why. I think that under an Obama administration, some of those marginal cases would get brought. But those marginal cases are few and far between. So I think the hype about a ramp up in significant antitrust cases is overblown. We don’t know whether we’re seeing shifting stances or shifting sands. Shifting stances is a change in enforcement philosophy. Shifting sands means that the underlying economics of the deals coming through are changing. Ultimately, I’m not sure that the Obama administration, whoever they put in charge of DOJ, may not come to the same conclusions as the Bush administration already does.
In addition to Obama’s words during his campaign, the fears are also seeded in the growing legal movement to replace current antitrust enforcement with a series of bright line tests. But legal scholars differ as to whether such a movement will benefit or detriment antitrust concerns and the current global economic slowdown.

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