- AI-focused Antitrust & Consumer Protection Matters — The rise of artificial intelligence (AI) has come under scrutiny of government enforcers and private litigants. On the competition side, plaintiffs have alleged that AI could be used in ways that harm competition, including as part of a conspiracy to use AI-supported algorithms related to pricing or other competitive datapoints. Additionally, government enforcers have made clear they are paying attention to proposed mergers involving AI assets that could lessen competition at various levels of the AI or cloud computing infrastructure. With respect to consumer protection, regulatory authorities around the world are watching closely as well, with some implementing AI-specific legislation (e.g., EU AI Act enforcement to begin as early as February 2025) and others already bringing enforcement actions under existing laws (e.g., FTC addressing AI in fake online reviews).
- Criminal Enforcement Priorities — Based on historical trends, the incoming U.S. presidential administration is likely to maintain the current moderate level of criminal antitrust enforcement. However, it is likely we will see a return to focusing on price fixing, market allocation, and other historically per se illegal activities, and a shift away from recent attempts to expand criminal enforcement to other conduct historically evaluated by balancing harms to competition and pursued as civil violations (e.g., monopolization). Additionally, with leniency applications on the rise, the incoming administration’s response to these also will be important to follow.
- Pre-Litigation Merger Remedies with DOJ/FTC — In the last two years, there have been no pre-litigation settlements that involved divestitures, and parties to just three deals were able to settle in litigation. Some parties were able to restructure their deals prior to litigation to eliminate concerns; however, that is not always a practical option. While pre-litigation remedies may make a comeback during the incoming administration, how aggressive authorities will be in negotiating them remains to be seen, especially in light of recent court victories.
- Continued Enforcement Against Board Interlocks — Given that the new Hart-Scott-Rodino (HSR) Act Form (expected to be effective Feb. 10, 2025) requires information about board overlaps between parties, the U.S. authorities now will receive more systematic information about potential interlock violations. While the incoming administration may be satisfied with mere resignations as opposed to the formal consent decrees seen recently with the FTC, companies should still expect diligent enforcement of Section 8. Even where the underlying transaction may not raise concentration concerns, the authorities are unlikely to ignore an obvious interlock violation.
- Fallout from New HSR Act Filing Rules — The FTC issued new rules requiring a significant amount of additional information for most HSR Act filings made on or after Feb. 10, 2025. While the changes passed with a unanimous vote, the outgoing administration also unilaterally withdrew informal guidance associated with the old form, which still has relevance in the new regime. Withdrawing of guidance has been a more common phenomenon in the outgoing administration; however, the remaining Commissioners transitioning to the majority have stated the importance of limiting burdens in reaching consensus on the new HSR rules. In light of this, it is likely that any new informal interpretations of the updated filing requirements will not be used as a back door to unreasonably widen the scope of filing information, although, for some wholly new aspects of the HSR Form, it remains to be seen where certain lines will be drawn.
About the Authors
Tonya M. Esposito is chair and Justin P. Hedge is a shareholder in Greenberg Traurig, LLP’s Antitrust Litigation & Competition Regulation Practice, which handles the full range of antitrust matters — litigation, merger enforcement, government conduct investigations, criminal enforcement, and compliance counseling/audits. The practice supports clients internationally, drawing on the capabilities of our global platform of legal talent in the United States, Europe, Latin America, and Asia.