On November 10, the Antitrust and Unfair Competition Law Section of the California Lawyers Association hosted its annual Golden State Antitrust & Unfair Competition Law Institute (GSI) at the Julia Morgan Ballroom in San Francisco. Each year, a host of legal professionals, from attorneys to academics to judges, gather at the event to discuss the most recent developments in the law, trials, and enforcement in this multi-session conference, which is followed by a reception and dinner honoring the California Antitrust Lawyer of the Year. It’s a thrilling opportunity to get a sense of the most pressing issues in the antitrust space and to hear from those at the helm of this sector of the law.
I had the pleasure of interviewing the GSI’s keynote speaker, Jonathan Kanter, the Assistant Attorney General, in charge of the Antitrust Division of the United States Department of Justice.
Our conversation plumbed the depths of recent cases and gave an inside view into the Department of Justice’s approach to these. Here’s a summary of our discussion, which covers some of the key points Kanter covered:
Kanter defended the Antitrust Division’s recent record in cases it has taken to trial, including the losses in multiple merger cases and its failure to obtain a conviction in a series of cases relating to bid-rigging in the chicken industry. He emphasized the Division’s recent win in the Simon & Schuster trial as an example of how the Division is prepared to litigate and win cases. He noted how the Department of Justice had a novel theory of harm, including the effect on compensation for authors and marketplace of ideas, which was used in its successful challenge to Random House’s proposed acquisition of Simon & Schuster.
In the future, Kanter is committed to bringing merger cases whenever appropriate based on the facts and noted that he would not be limited to focusing on price effects when deciding whether to challenge a merger or conduct. For example, he noted that privacy considerations could and should be evaluated when determining whether challenged conduct has impacted the competition.
He noted that the Antitrust Division is committed to broadening the lens beyond a focus on the consumer welfare test, pointing to the legislative history of the Clayton Act and Sherman Act and older cases under those statutes to show the consumer welfare standard is too narrow.
Consistent with that perspective, he observed there would be a commitment to reinvigorate the enforcement of certain aspects of the antitrust laws that, in his view, have historically been under-enforced. This includes Section 8 of the Clayton Act and enforcement of Section 2 of the Sherman Act in criminal monopolization/attempted monopolization cases.
He also noted the new merger guidelines—which are still being drafted—will go beyond traditional measures of consumer welfare to consider other factors, such as the impact of mergers on workers.
Regarding the Department’s track record, he shared how, when companies have abandoned deals either before or after a public challenge, those are successes for the United States Department of Justice. Lastly, he emphasized that the Department of Justice is always evaluating its approach to see if there are ways to improve, including after losses. This proves that even at the highest level of the law, there’s always room to learn and grow one’s practice.