Antitrust Zeal to Morph but Won’t Fade Under Next President

Antitrust watchdogs are expected to continue to scrutinize companies and deals no matter who wins the White House, according to litigators who focus on competition law.

“You can’t unscramble the egg,” said Kellie Lerner, who left Robins Kaplan to launch a boutique firm last month. “What this administration has done to push forward antitrust is not something that can be pushed back in any easy way.”

The Justice Department and the Federal Trade Commission under President Joe Biden have ramped up merger challenges, pushing more companies to abandon those deals than in at least two decades. That’s made antitrust an active arena for law firms defending companies in those cases and representing plaintiffs in court.

Vice President Kamala Harris is likely to largely continue that approach if she’s elected, the lawyers said. Another term for Donald Trump, whose first administration killed at least one massive deal, poses more of a wild card.

“This is not your grandfather’s GOP,” Deborah Garza, vice chair of D.C. antitrust shop Rule Garza Howley. “This is Trump’s GOP.”

Falling interest rates and regulatory certainty after the election could boost deals and generate more enforcement activity. But the approach could vary widely.

A key early indicator will be who gets the top FTC and DOJ antitrust roles. Harris hasn’t said if she plans to stick with Lina Khan and Jonathan Kanter in those positions. Trump will usher in new leadership, if elected, potentially picking one of two current FTC Republicans.

“We’ll really know more when we see what individuals are tapped for leadership,” said Garza, who was an acting assistant attorney general under President George W. Bush.

Another initial test will be what to do about Google. The Justice Department has signaled it may try to break up the tech giant over its search monopoly.

Boutiques at Front Line

The increase in antitrust litigation, including in the tech and life sciences sectors, has created opportunities for a growing crop of small firms that focus on those court fights. Several leading boutiques feature prominent litigators who left larger firms, which they work alongside in major cases.

“People like us get more than our fair share of them because people are looking for real specialists,” said Beth Wilkinson. The former Paul Weiss partner has been at the center of high-profile antitrust cases.

Lawyers from Wilkinson Stekloff and Arnold & Porter are defending Visa in a Justice Department lawsuit accusing the global payments processor of monopolizing debit cards by penalizing merchants and paying off potential rivals. Axinn Veltrop & Harkrider, a smaller firm that focuses largely on antitrust, is co-counsel with Paul Weiss and Freshfields for Google’s showdown with the DOJ.

Outlook for Harris

A Harris administration is likely to keep up strong antitrust enforcement, said Garza, an ex-Covington & Burling partner. But, she said the FTC and DOJ could take a more moderate stance on labor-related issues or in seeking remedies for anti-monopoly cases.

The agencies under Biden have taken a hard stance against settlements, previously a hallmark of enforcement. Business leaders complain it’s a heavy handed approach.

Some of her campaign’s biggest donors, including LinkedIn co-founder Reid Hoffman, want Harris to fire Khan.

Her inner circle has ties to Big Tech. Harris’ brother-in-law Tony West took leave as Uber’s top lawyer to work on the campaign. Uber coughed up $20 million to settle FTC claims over driver compensation in 2017. Paul Weiss partner Karen Dunn, who is defending Google in the DOJ suit, prepped Harris for her debate against Trump.

Enforcement changes under Harris are likely to be subtle, to placate stalwarts such as Sens. Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.), according to Bill Kovacic, an antitrust law professor at the George Washington University Law School.

“They’re watching her every move, and I don’t think she wants to pick a fight with them,” said Kovacic, who served as FTC chair in the George W. Bush administration.

Outlook for Trump

Negotiated settlements are likely to be back on the table in a second Trump administration. But, even if new leadership wants to walk back Biden-era compliance requirements for companies, undoing the moves will take time.

Trump’s DOJ under Makan Delrahim sued to stop AT&T Inc.'s takeover of Time Warner Inc. The administration later was criticized for allowing T-Mobile’s acquisition of Sprint Corp. to go through after initially signaling it might block the merger.

Trump doesn’t back a forced breakup of Google, he said in an Oct. 15 interview. He instead said he’d “do something” over concerns about its search dominance.

“Google is rigged just like our government is rigged,” he said.

FTC Commissioners Andrew N. Ferguson and Melissa Holyoak are likely near the top of the list for chair in a second Trump administration. Ferguson, previously counsel to GOP Senate Leader Mitch McConnell (Ky.), and ex-Utah Solicitor General Holyoak take a more traditional Republican stance on antitrust issues.

Ferguson, who earlier was a lawyer at Jones Day, recently questioned the constitutionality of the agency’s administrative judge system. Holyoak said she’d consider overhauling Biden guidelines for reviewing acquisitions.

Trump’s running mate, JD Vance, is one of the GOP’s most vocal critics of big business deals. Vance has questioned Big Tech acquisitions, including Meta Platforms Inc.'s buy of Instagram and Whatsapp. He teamed up with Democrats to propose an end to tax breaks for corporate mergers and expressed concern about Google’s Gemini AI project.

“You actually want to separate all of these market verticals as much as possible,” Vance said at a February conference co-hosted by Bloomberg Beta. “That’s where I think antitrust is probably the most useful way to think about a solution.”

Trump’s “impulsiveness” and “strong-minded” nature make it tough to read the tea leaves.

“Who will he choose to advise him? Who will he choose to appoint to these agencies and will he listen to them?” Kovacic said. “That makes him unpredictable in a number of ways.”