Updates from the American Bar Association’s 72nd Antitrust Law Spring Meeting

Spring brings two things to Washington, D.C. each year: cherry blossoms and, for several days in April, the world’s foremost antitrust practitioners. This year was no exception. From April 10 through April 12, members of the American Bar Association’s Antitrust Law Section met at the Marriott Marquis to hear panels of judges, attorneys, economists, and regulators speak about the latest developments in competition law in the United States and abroad.

Several themes blossomed at this year’s meeting. A major focus of this year’s conference was emerging issues around artificial intelligence (AI) and generative AI. Sessions focused on the antitrust and consumer protection implications of AI and generative AI technologies, such as potential anticompetitive conduct, bias and misinformation, liability for fake online reviews or deception, and the use of AI as an enforcement tool.

Another major focus was Big Tech regulation and enforcement. Various sessions covered antitrust enforcement and regulation aimed at major technology platforms and digital markets, including the EU's Digital Markets Act, theories of harm around technology ecosystems and gatekeepers, merger challenges involving tech companies, and related private litigation.

Modernization of antitrust laws and guidelines and enforcement approaches were another key theme of this year’s conference. There were discussions on proposed updates to merger guidelines, filing requirements, and antitrust analysis by U.S. agencies and international counterparts to keep pace with economic and technological changes. Sessions also explored new enforcement priorities, revival of older laws like the Robinson-Patman Act, and shifts in areas like information sharing, non-competes, ESG collaborations, and labor markets.

With record attendance of nearly 4,000 participants from around the globe, the Spring Meeting presented a unique and exceptional opportunity to continue these dialogues and build meaningful connections through networking events, luncheons, and receptions, including a Women at the Top luncheon and Diversity Happy Hour. Notably, this year’s marquee event—Party with a Purpose—featured a buffet dinner and live band with performances by past, present, and future Section Chairs, surprise guests, and even audience members. This event was much more than just a party, however, serving as a fundraiser for four charitable causes: the Hollis L. Salzman Memorial Scholarship, the ABA Legal Opportunity Scholarship Fund, the ABA Judicial Intern Opportunity Program, and Save the Children.

And just as peak bloom ends mere days after arriving on the District’s cherry trees, so too did another edition of the ABA’s Antitrust Law Spring Meeting. But while cherry blossom season only declines in grandeur in the days after peak bloom arrives, the Spring Meeting saves its best for last. Conference attendees gathered in the Marquis Ballroom for the enforcers’ roundtable. Seated on the dais in front of an LED display panel, large enough that you could forgive attendees for assuming it was borrowed from Capital One Arena, were Gwendolyn Cooley (NAAG Antitrust Task Force Chair), Jonathan Kanter (Assistant Attorney General for the DOJ’s Antitrust Division), Lina Khan (FTC Chair), Andrea Saltiel (Chairwoman of Mexico’s Federal Economic Competition Commission), and Margrethe Vestager (Executive Vice President of the European Commission).

During the panel, Gwendolyn Cooley highlighted the innovative approaches states are taking in enforcing antitrust and competition laws. She noted the proliferation of state statutes to curb abuse of dominance, mirroring the enforcement powers seen in the EU. For instance, legislators in Florida proposed statutes to prevent venue exclusivity in publicly funded venues and empower artists to choose their ticketing platform.[1] She also highlighted use of the State Antitrust Enforcement Venue Act by states to bring cases in their preferred venues. She explained that key enforcement priorities for the states going forward are markets for fundamental goods such as groceries. To further underscore the vital role states play in maintaining competitive markets, she highlighted that 44 states have criminal enforcement authority over antitrust violations, and mentioned a growing focus on entities interacting extensively with government agencies to curb criminal practices like bid rigging.

Jonathan Kanter emphasized the Department of Justice's commitment to enforcing antitrust and competition laws, stating unequivocally that it will block illegal mergers. He noted that despite the perception of novelty, the new merger guidelines primarily draw from established case law for their thresholds. What is new, Kanter explained, are the unprecedented number of open grand jury investigations and the DOJ's significant investment in detection tools to proactively identify antitrust violations. Kanter also stressed that the evolving nature of antitrust considerations—particularly in healthcare, where the traditional safe harbor for third-party intermediaries may no longer be sufficient given the prevalence of large datasets—necessitates updating enforcement approaches.

Chairwoman Khan underscored the FTC’s skepticism toward acquisitions by monopolistic entities, exemplified by its critical stance on the Sanofi acquisition due to concerns about a dominant player controlling access to essential drugs. She also highlighted the establishment of a new office of technology within the FTC. This office has focused on recruiting experts in data science, computer science, and AI to enhance enforcement capabilities. She noted that the FTC has already integrated technology expertise into its investigations, enabling the inclusion of crucial “counts” in complaints. Addressing one of the conference’s key themes—artificial intelligence—Chairwoman Khan reiterated the FTC's position that AI does not exempt companies from antitrust regulations. On questions of privacy law, Khan praised the Kochava[2] ruling for recognizing invasion of privacy as a basis for injury under Section 5 of the FTC Act, and she expressed support for vesting enforcement powers of potential future privacy laws in the FTC. Finally, she clarified that there are no exemptions to antitrust laws based on environmental, social, and governance (ESG) considerations.

Andrea Saltiel provided updates on the exciting developments in competition law in Mexico. She highlighted Mexico's imminent initiation of its first-ever collective action on behalf of citizens, emphasizing collaboration with state-level governments and chambers of commerce. Like the state-level enforcers here in the United States, Mexico’s Federal Economic Competition Commission is focused on addressing consumer pain points, such as the high cost of groceries. While addressing criticisms of the Commission’s perceived slowness, she defended the agency’s efficiency while acknowledging ongoing efforts to enhance effectiveness. To demonstrate the Commission’s wide-ranging efforts to safeguard competition across various sectors of the Mexican economy, Saltiel discussed the conditional approval of a significant merger involving electricity plans, and highlighted ongoing investigations into land and rail transportation as well as the distribution of corn flour.

Margrethe Vestager provided insights into the European Union's (EU) enforcement of antitrust and competition laws. She began her comments with a reminder that European laws were originally based on the Sherman Act, so while there are some differences, governments on both sides of the Atlantic are ultimately pushing enforcement in the same direction. She noted the EU's decision against altering intervention thresholds, citing confidence in their existing legal framework. Vestager later highlighted efforts to bolster data capabilities to handle larger datasets and reiterated the EU's commitment to enforcing laws in the pharmaceutical sector to ensure affordable prices. Expressing concern over the slow progress of corporate cooperation on sustainability, she mentioned the issuance of sustainability guidelines offering a safe harbor for collaboration, yet she worried that she has observed limited engagement from corporate actors. Vestager dismissed worries about greenwashing but cautioned against potential misuse of green policy subsidies at the expense of competition, emphasizing the EU's vigilance in preserving fair market dynamics amidst sustainability initiatives.

The enforcers’ roundtable concluded with a discussion of climate change and the role that antitrust exemptions may play in speeding efforts at decarbonizing in time to combat climate change. This is one area where views differed depending on which side of the Atlantic you asked. Margrethe Vestager said that in Europe they are seeing a necessity for incentives and subsidies to get the market to deliver climate solutions. She also noted that European companies have complained that the lack of a safe harbor from antitrust enforcement in the United States is hindering efforts to cooperatively address sustainability. On this side of the Atlantic, both Lina Khan and Jonathan Kanter voiced the view that it is not their respective agencies’ roles to create exceptions for sustainability. Kanter went even further and voiced concern that companies will try to shield anticompetitive conduct under the guise of sustainability.

In sum, the 72nd Antitrust Law Spring Meeting of the American Bar Association not only provided a platform for profound discussions on the evolving landscape of antitrust law but also set the stage for significant dialogue on cutting-edge issues like artificial intelligence, Big Tech regulation, and modernization of enforcement strategies. Panels featuring a constellation of legal experts and regulators—including notable figures from the DOJ, FTC, and enforcers abroad—underscored a global commitment to vigorous enforcement and adaptive legal frameworks in the face of rapid technological and economic changes. As attendees depart, armed with new insights and fortified connections, the impact of these discussions is poised to resonate well beyond the temporal beauty of D.C.’s cherry blossoms. Or at least until everyone reconvenes next year.

Marcus “Hill” Brakefield, Shana R. Herman, and James “J.R.” Hamilton are Associates in Washington, D.C.

Footnotes

[1] See Dave Clark, Florida Bills Target Allegedly Anticompetitive Ticketmaster Tactics, Ticket News (Oct. 2023), https://www.ticketnews.com/2023/10/florida-bills-target-allegedly-anticompetitive-ticketmaster-tactics/.
[2] See FTC v. Kochava, Inc., 671 F. Supp. 3d 1161 (D. Idaho 2023).