As the transition to the new Trump administration unfolds, legal professionals and industry stakeholders are closely observing potential shifts in antitrust litigation. Although one might anticipate a deviation from the rigorous pace set during the Biden administration, indicators suggest that antitrust actions will not slow, particularly where state governments and the plaintiffs’ bar are concerned. This expectation is built upon ongoing federal and state-led lawsuits against key tech giants like Google, Meta, Apple, and Amazon.
The technology sector is expected to remain a focal point for antitrust scrutiny, with significant cases still in progress, including Google’s recent search case and a trial concerning its advertising practices. Additionally, the Meta litigation is slated for trial in April 2024. Outcomes from these cases may influence the wider antitrust policy landscape across various industries.
Prominent among anticipated trends is the potential for emerging antitrust theories under Sherman Act Section 1 linked to information exchange, which has gained prominence due to the vast data sharing in our digital economy. The withdrawal of longstanding guidance by federal antitrust regulators on information-sharing compels courts to interpret rules, though consensus remains elusive.
Beyond tech, traditional sectors such as food production, education, and sports are also under antitrust scrutiny. Notably, recent legal activities include challenges to information exchanges among meat producers and a blocked deal between Kroger and Albertsons in the distribution space, both highlighting the expansive reach of antitrust litigation.
The application of ESG-related antitrust theories is another emerging trend, exemplified by a lawsuit involving Vanguard, BlackRock, and State Street’s shareholder influence on coal company management for climate-related reasons. These novel theories are set to test the boundaries of Section 1, as both state and federal agencies might explore the competition impacts of ESG criteria and DEI policies.
While the administration’s stance might lean toward favoring mergers, owing to a less confrontational approach to vertical mergers than the Biden era, this doesn’t imply a cessation of merger litigation. On the contrary, state attorneys general have shown increased activity, sometimes acting independently or collaborating with other states and federal enforcers. This trend is particularly evident in areas the new administration deems of interest, where merger enforcement and litigation may persist or even escalate.
For further insights from experts Jeetander Dulani, Nicci Warr, and Emily Asp at Stinson, read the full analysis here.