What’s on Deck for Antitrust in 2018

Antitrust moved into the spotlight in 2017.

The year brought a change in administration and new leadership at the Justice Department antitrust division and Federal Trade Commission who put in motion several high-profile policy steps and enforcement actions. Democratic members of Congress adopted antitrust reform as a core political issue. Mergers were cleared and some, unexpectedly, blocked.

The next year promises to keep antitrust headlines coming as the DOJ prepares for a prominent merger trial, the White House stocks the FTC with new commissioners and much more. Here’s what to expect in 2018.

AT&T and Time Warner Trial

The battle between the Justice Department and AT&T and Time Warner will heat up in coming months as they prepare for a hot-ticket trial in April. This is the highest-profile merger case in decades. The companies say they need the merger to compete against Netflix Inc. and Amazon Inc., and bring benefits to consumers. Meanwhile the government argues the merger would give AT&T too much control over must-have content like HBO and CNN. The next meeting of the parties is set for Jan. 5 in front of the federal judge who will decide the merger’s fate.

Confirmation of Federal Trade Commissioners

The Federal Trade Commission is still operating with just two commissioners, as it has for nearly the entire year. Acting Chairman Maureen Ohlhausen has been at the reins since February, rolling out her own initiatives like occupational licensing reform. The White House in October took steps to fill out the five-member commission by nominating antitrust attorney Joseph Simons and consumer protection advocate Rohit Chopra.

The Senate will consider these nominations, but if confirmation is anything like the one top DOJ antitrust cop Makan Delrahim faced, the nominees could face a prolonged process.

Criminal Charges in No-Poach Agreements

DOJ enforcers have signaled for months that it could file criminal charges as a result of its investigations into the anticompetitive effects of business-to-business agreements about employees. The DOJ and Federal Trade Commission last year announced that they would criminally prosecute “wage-fixing” and no-poaching agreements. Up until then, only civil charges had been filed in these investigations.

New Kinds of Health Care Deals

A slew of experimental health care deals announced in recent weeks could test how antitrust officials think about the evolving health care industry. CVS Corp. wants to buy insurer Aetna Inc., and UnitedHealth Group Inc., the biggest U.S. health insurer, will acquire doctors group DaVita Medical Group. Antitrust practitioners are bracing for regulators’ questions about how those merged entities might exercise inappropriate leverage over various health services.

Antitrust Law Overhaul Legislation

Expect a package of antitrust bills to be introduced in both the House and Senate in 2018 The House Antitrust Caucus has announced plans to back bills to “modernize” the antitrust laws, and Sens. Amy Klobuchar (D-Minn.) and Mike Lee (R-Utah) are reportedly working on their own legislation together.

Some measures have already arrived. A House bill would direct antitrust agencies to study the impact of mergers by requiring the FTC and DOJ to assess a merger’s effect on price and quality of products, along with job cuts and pay. Klobuchar has authored two bills that would amend key pieces of the bedrock Clayton Act and apply a sliding scale to the fees merging companies pay when filing for government review, charging larger transactions more than smaller ones.

To contact the reporter on this story: Liz Crampton in Washington at lcrampton@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com