Key Antitrust Enforcement Trends — 2019 Antitrust Annual Report

July 23, 2019

Key Antitrust Enforcement Trends — 2019 Antitrust Annual Report

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Shearman & Sterling released its Antitrust Annual Report today. The 2019 report considers two key developments shaping worldwide antitrust enforcement – the use of antitrust as a tool to regulate large technology corporations and U.S. antitrust enforcement under the Trump administration.

Other topics discussed include the expansion of CFIUS controls and its impact on foreign investment in the U.S., intellectual property enforcement and data privacy issues, tougher merger control enforcement of procedural rules, protection of nascent competitors and conglomerates effects, litigation highlights in the U.S. and the EU and possible implications of Brexit for State aid rules.

“We are delighted to share our perspective on antitrust enforcement trends,” said David Higbee, Global Antitrust Practice Group Co-Leader. Matthew Readings, Global Antitrust Practice Group Co-Leader added, “This report is a valuable resource for those who want a deep look into landmark cases as well as developing trends and issues in antitrust regulation and enforcement.”

Antitrust as a tool to regulate FANG companies (Facebook, Amazon, Netflix and Google)

While in Europe antitrust has increasingly been used as a tool to regulate FANG companies, the U.S. antitrust authorities have taken a more hands off approach. This may be about to change.

Enforcement issues under the Trump administration

The Trump administration was widely expected to take a more permissive approach to antitrust regulation, but the DOJ and the FTC have challenged high-profile mergers and streamlined merger processes.

The expansion of CFIUS and its impact on foreign investment in the U.S.

CFIUS, traditionally in the shadows of the DOJ and FTC’s antitrust merger reviews, is now in the limelight with a more aggressive posture as Congress has granted it new powers.

Intellectual property antitrust enforcement and data privacy issues

Data has become an important parameter for market competition in the digital economy, placing data privacy at the center stage. Meanwhile, the Trump administration is changing its approach to IP issues arising in the context of standard-setting organizations.

Tougher merger control enforcement of procedural rules, protection of nascent competitors and conglomerate effects

On both sides of the Atlantic, agencies are focused on safeguarding future competition.
Antitrust regimes around the world are becoming tougher on procedural rules in merger control – responses to requests for internal documents, legal privilege and gun-jumping.
The DOJ and FTC, and other enforcers like the U.K.’s CMA or the Australian ACCC, have challenged several transactions that were not reportable.

Litigation highlights in the U.S. and the EU

The U.S. Supreme Court’s American Express ruling provides lessons on antitrust analysis and antitrust litigation.
The Supreme Court case, In re Vitamin C Antitrust Litigation, has implications for international comity.
We examine a recent landmark case which may provide a route for creditors to attack EU State aid approvals of bank resolution, something that has been very difficult to date.