On November 25, 2008 the American Bar Association’s (ABA) Section of Antitrust Law issued a transition report to the incoming Obama Administration, offering its views and recommendations on the current state of US antitrust enforcement and policy. The Section’s overall assessment of antitrust and consumer protection enforcement was positive. Nonetheless, the report notes “room for improvement,” specifically calling for reform of the merger guidelines and merger review process and increased international cooperation among national antitrust authorities.
With respect to merger reform, the report notes concerns that the merger guidelines no longer reflect current economic thinking and the approaches taken by the DOJ and Federal Trade Commission (FTC) in merger review. Therefore, the Section recommends the following reforms:
(1) Giving additional weight to certain fixed-cost efficiencies, such as research and development expenses;
(2) Improving application and understanding of unilateral effects theories, particularly with respect to auction markets, high tech mergers, evolving markets and the role of market definition relative to competitive effects;
(3) Providing official joint DOJ/FTC guidance for vertical mergers;
(4) Revising the guidelines to address potential competition and innovation issues;
(5) Assessing the effectiveness of remedies and improving the remedies process; and
(6) Providing greater transparency through speeches, commentary, closing statements and workshops.
The report also expressed concern regarding the lack of international cooperation among the world’s 80-some merger control regimes. Because many of these jurisdictions prohibit mergers and acquisitions from closing until agency approval, inconsistent standards of review and procedures provide costly and unnecessary hurdles for companies involved in multinational mergers. The Section calls for streamlining the process for international mergers by allocating responsibility based on relative degree of interest. Moreover, the Section emphasizes the importance of providing comprehensive information in guidelines, notices, regulations and decisions to preserve the United States’ leadership role in the development of antitrust jurisprudence and policy. Otherwise, the newly created and less experienced jurisdictions will begin to follow the precedents of the European Union, which publishes a greater volume of information in its administrative decisions than the United States.
Other issues addressed by the report include investigatory processes (including merger process reform, transparency, investigative timing and improving parties’ contact with the agencies); improving resources; international cooperation (cartels, unilateral conduct and other types of civil non-merger enforcement); criminal enforcement, penalties and leniency; retrospective analysis; civil nonmerger enforcement; monopolies; interface of intellectual property and antitrust; health care; federal, state and private plaintiffs cooperation; and other substantive reforms, such as the repeal of the Robinson-Patman Act, opposition to exemptions and immunities from antitrust laws, and guidance for resale price maintenance analysis post-Leegin. For more information, please review the report on the ABA’s website.