Jeff Severson and his coauthors discuss the first of these—and specifically the issue of appropriate sentencing in criminal monopolization cases. Although the authors do not cite either Cicero’s De Legibus or Gilbert & Sullivan’s Mikado, they would agree with the proposition advanced by both works: Let the punishment fit the crime. The problem is that the 45-year gap since the last criminal prosecution of unilateral conduct makes it hard to find guidance in earlier cases. They discuss alternative sources of guidance: Section 1 cases and a range of non-antitrust but arguably comparable crimes (such as wire fraud).
Antitrust editorial board member Claire Xie with her co-authors Gabriella Monahova and Kate Foreman explore recent economic literature analyzing the effects of pricing algorithms. They find support for the proposition that pricing algorithms can result in supra-competitive prices in some circumstances. Indeed, the literature suggests that algorithms can learn to sustain prices above competitive levels without being instructed to collude—and even when specifically instructed to act competitively. This raises the legal question of whether that kind of algorithmic behavior is collusive or is simply a sophisticated form of unilateral conscious parallelism.
In addition to our theme articles on criminal enforcement, this issue also offers several articles on merger enforcement. First, editorial board member Ian Simmons moderates a panel discussion on the 2022 merger guidelines with a distinguished and diverse panel: former Antitrust Division chief economist Susan Athey (and currently Professor of Economics at Stanford), former Bureau of Competition director Bruce Hoffman, Antitrust Division policy director David Lawrence, FTC associate director for merger analysis Nathan Soderstrom, and Analysis Group CEO Martha Samuelson.
Next, Professor John Kwoka explores what happens when the FTC or DOJ resolve a merger challenge by accepting a divestiture remedy. He identifies common problems with divestitures, reviews the literature, and finds that at least 30% to 40% of divestiture remedies (and likely more) fail. He argues that the FTC and DOJ should reconsider their basic approach to accepting divestiture remedies.
Kevin Hahm and Brian Miller identify a specific type of vertical merger for examination: payer acquisitions of healthcare providers (and vice versa). Hahm and Miller observe that federal healthcare policy may lead to an increase in this kind of transaction, which may have pro-patient benefits but can also have anticompetitive effects (for example, if a transaction combines a payer and provider that are both dominant in a given geographic market, creating incentives to disadvantage rivals). They offer a framework for antitrust analysis of these transactions.
Turning from substance to process, Rebekah Tobison Scherr and her co-authors discuss the new HSR rules scheduled to become effective February 10, 2025. They describe the intention behind the new form, and they walk through the new requirements that the form imposes. They raise several questions that they suggest need answering before the effective date (such as whether the agencies are really asking parties to file potentially thousands of “draft” documents), and they offer some best practices for deal counsel.
Consumer protection is part of the Antitrust Section’s (and this magazine’s) mission, and this issue offers two articles on that topic. Editorial board members Aaron Burstein and Janis Kestenbaum conducted a wide-ranging interview with the Federal Trade Commission’s Bureau of Consumer Protection Director Samuel Levine. The discussion included junk fees, privacy, data security, artificial intelligence, the FTC’s rulemaking authority, and Levine’s pre-election predictions of which of the FTC’s recent efforts will prove most enduring.
Katherine White then picks up on a strand from this interview—the FTC’s rulemaking authority in consumer-protection matters and the implications of the Supreme Court’s Loper-Bright decision. She discusses the statutory basis for the FTC’s rulemaking authority, and she predicts that courts will be less inclined to show deference to the FTC where the agency’s rulemaking represents an expansion of its authority or where its enforcement actions are based on novel theories of liability.
Our Litigation Practice Editor Lisa Wood reviews the Views from the Bench program from the Antitrust Section’s Spring Meeting earlier this year. The panel had included Judges Amy St. Eve, Denise Cote, Susan Illston, Philip Gutierrez, Daniel Crabtree, and Lindsey Vaala—a geographic cross-section of judges, including four district judges, a magistrate judge, and an appellate judge. The discussion covered discovery, oral argument, expert selection, expert tutorials and hot tubs, and some differences between jury trials and bench trials.
Antitrust and competition law, of course, are not confined to the United States. China’s Anti-Monopoly Law went into effect 15 years ago, and Zhenguo Wu and Mingming Wu mark the occasion with a review of the statute’s implementation over those years.
As I write this introduction shortly after Thanksgiving, I am mindful of everyone that makes this magazine such a jewel for the Antitrust Section—our writers, our staff, our editorial board, and, of course, our readers. We at Antitrust magazine wish you a joy-filled holiday season and a prosperous new year!
