April 27, 2020

Antitrust Roundtable: Enforcement continues in U.S. and abroad amid COVID-19 pandemic

Whether working from their kitchen table, home office or basement, it’s business as usual for antitrust law enforcement officials nationally and internationally who are busier than ever during this global pandemic.

“The presence of a health crisis like the one we’re in unfortunately is viewed by some people — a lot of people — as an opportunity to take advantage of the public,” said Joseph Simons, chair of the Federal Trade Commission. “This really makes our mission to protect consumers from anti-competitive and unfair and deceptive action practices even more important.”

Simons was a participant on the Enforcers Roundtable panel discussion held April 24 as part of the American Bar Association Antitrust Law Section’s Virtual Spring Meeting. Simons and other antitrust enforcement officials from the U.S., Canada and European Union appeared via a 9-minute video conference that was livestreamed worldwide. The 68th Spring Meeting — which annually attracts more than 3,200 government enforcement officials, private attorneys, in-house corporate counsel, academics, judges, economists and businesspeople from more than 60 countries — was held digitally this year due to the coronavirus outbreak. The virtual conference was spread out over 15 days from April 17-May 1 and offered 36 free online programs via livestream, podcasts and videocasts as well as virtual receptions. The Spring Meeting is normally a four-day in-person event held in Washington, D.C., with more than 70 programs.

Brian Henry, chair of the Antitrust Law Section and co-moderator of the Enforcers Roundtable, said the conference had attracted more than 5,000 virtual attendees so far; the roundtable drew more than 300 viewers.

The panel also included Makan Delrahim, assistant attorney general for the Justice Department’s Antitrust Division; Sarah Oxenham Allen, Virginia’s senior assistant attorney general and antitrust unit manager; Matthew Boswell, Canada’s commissioner of competition; and Margrethe Vestager, European Union competition commissioner.

The antitrust officials discussed how they have had to adjust to working remotely to review mergers, combat consumer protection scams and deceptive practices related to COVID-19 and work with companies on competitor collaboration that are specifically designed to get critical essential products and services to the public during the pandemic.

Simons said the FTC is prioritizing enforcement efforts to stop coronavirus scams as well as any attempts to take advantage of consumer-related fears such as financial distress. In addition to issuing more than 40 warning letters to companies making unsupported claims of products’ ability to treat the coronavirus or to service providers and companies that license telephone numbers that facilitate illegal telemarketing or coronavirus-related robocalls, the agency set up two new websites — www.business.covid@ftc.gov for businesses seeking guidance about the compliance obligations on consumer protection issues during the crisis; and www.ftc.gov/coronavirus, which provides information to educate consumers on emerging coronavirus scams. .

Simons also said that the agency’s longstanding paper pre-merger filing process is now electronic “as a direct result of the coronavirus pandemic.”

Delrahim, who says he’s working from his home basement in addition to his new role as breakfast chef, says the DOJ Antitrust Division has been as busy as ever. “Our merger reviews and criminal investigations have continued,” he said. “We joined our friends at the Federal Trade Commission to issue some guidance because we wanted to make sure to send a signal to the business community that we are going to do what we can to help with the kind of collaboration that might be needed and review as fast as we can any type of efforts that would be required. Secondly, we want to send the message that we are not going to tolerate anybody who is going to transgress the laws to take advantage of this situation.”

Delrahim noted that his division has worked overtime to commit to completing business review letters within seven days, a process that typically would take upwards of 6 months to a year. “Our work has gone virtual, he said, “but we have adapted, and I think there are going to be some long-term changes and we will all learn some lessons through this process.”

Allen, chair of National Association of Attorney Generals Antitrust Taskforce, said state attorneys general have been “inundated” with complaints about price gouging of essential products. “We’ve been working overtime trying to keep up with them and to follow up with the appropriate actions,” she said. NAAGG has a public website — www.consumerresources.org — that is updated daily on COVID-19 related actions being taken such as cease-and-desist letters to rein in deceptive and false advertising of products and financial fraud.

In Canada, Boswell said his competition bureau moved quickly to assist in the COVID-19 response by assembling a team dedicated to monitoring social media and monitoring the marketplace for false, misleading or deceptive fraudulent claims related to coronavirus products and taking appropriate legal actions. Like his U.S. counterparts, Bowell said his agency has issued guidance to the business community in Canada about competitor collaborations. “We have indicated that we would exercise greater discretion for competitor collaboration that are specifically designed to get critical essential supplies and services to Canadian citizens during this time,” he said. “We also warned them not to use this pandemic as a cover for other types of cartel conduct.”

Vestager said the EU competition commission has also sounded the warning horn to companies seeking to take advantage of the public during this pandemic, saying the agency supports companies collaborating to buy essential products and supplies to help the public “as long as the cooperation  doesn’t spill over in illegal collusion or other abuses of the situation.”

She also the EU is providing financial aid to companies, like the small business loans Congress passed to help U.S. companies, and that her agency is continuing to review merger deals as quickly and thoroughly as possible.

“As for our merger work, our rules haven’t changed, and this crisis certainly shouldn’t be a shield to allow for mergers that would hurt consumers and hold back recovery, said Vestager who is confined to her Brussels office hundreds of from her family in Copenhagen. “Europe is open for business, but it shouldn’t be that we leave European countries open for takeover by others who do not have to play by the rules.”