From March 26-29, 2019, the American Bar Association held its 67th Antitrust Spring Meeting, featuring panels on a wide range of topics from agency updates with the DOJ and FTC to pharmaceutical innovation. In this article, we highlight some key insights from the panels, honing in on agency perspectives articulated throughout the panels as well as hot topics in private litigation.

Agency Guidance

Vertical Mergers and Updated Guidelines. In light of the recent AT&T/Time-Warner decision, vertical mergers were raised on numerous panels, with agency officials providing insight into the landscape of future vertical merger review. FTC Chairman Joseph Simons discussed the Commission’s recent clearance of the Staples/Essendant and Fresenius/NxStage mergers. He noted that both decisions were driven by the absence of three pre-requisites for enforcement: (1) good documents, (2) good testimony, and (3) good economics. “Good” in this context means documents, testimony and data that support the government’s theory of harm. He warned that where at least two of the prerequisites are present, the Commission will likely bring vertical merger enforcement actions. Absent from his commentary was a discussion of the sharp dissents and partisan voting between Democratic and Republican commissioners in these clearance decisions. For example, in Staples/Essendant, Democratic Commissioner Chopra agreed with his Democratic colleague, Commissioner Slaughter, that the Commission’s economic model “likely underestimates the harmful effects” of vertical integration. In stark contrast, Commissioner Wilson issued her own statement expressing “grave concerns about [her] colleagues’ enthusiasm for treating all vertical mergers with skepticism and conducting a fundamental reevaluation of our vertical merger policy.”