The panel examined the recent surge in Section 2 enforcement, particularly targeting large tech companies, following more than two decades of minimal action in the wake of the Microsoft case. They explored whether recent filings, favorable verdicts, and aggressive demands for remedies have shifted the risk/reward calculus for dominant firms and their advisors. Conduct that, just a few years ago, might have been seen as relatively low-risk—with the primary consequence of an adverse ruling being a simple cease-and-desist order—may now carry significantly higher stakes, including the potential breakup of a company.
In addition, the panel discussed whether the new action in the Section 2 arena might be changing the way plaintiffs' firms are thinking about bringing actions, how to advocate for clients seeking enforcement action, and how new ex ante regulation that has been passed in places like the EU and UK (and has gained significant support in the US) was influencing the guidance provided to clients that do business around the world.
There was no firm consensus or conclusions drawn by the panel except agreement that unilateral conduct enforcement had become a hot area again after some dormancy and the difficulty of advising in the space when conduct could be interpreted as both aggressive and justified competition and anticompetitive and unfair. The recent change in approach was highlighted by the fact that some of the conduct now being attacked by enforcers as illegal had been arguably blessed as acceptable only a little more than a decade ago by US enforcers.
Also discussed was the value, or lack thereof, of competitor complaints to enforcers. While at least one panelist thought they were of little value, others noted that enforcers often find them valuable despite the complainant’s motivations. Even large, dominant firms in one market might successfully complain about the conduct of their competitor in another.
Though Plaintiffs firms have often declined to take on the high cost and risk of a novel Section 2 case, that could begin to change as the current slate of cases find their way to final decisions on appeal.
And finally, the emergence of ex ante regulations in other parts of the world have meant potentially different ways of doing business in different jurisdictions. Some of the panel were skeptical of the need or wisdom of the ex ante regulations like the DMA in Europe and DMCC in the UK, but others were enthusiastic supporters and believe that there is room and bipartisan support for similar legislation in the US.
The panel highlighted the need for dominant firms to seek counsel and guidance when engaging in conduct that might be perceived as anticompetitive or unfair by competitors or partners rather than assume the risks are minimal, and for those who feel aggrieved by conduct from dominant firms to explore their options with enforcers, public or private rather than assume there is no recourse. What has been a dormant area of the law for the last two decades is reemerging as an active practice area.
