DealLawyers.com Blog

While a more lenient approach to antitrust enforcement is expected in some ways in a second Trump presidency, this Sheppard Mullin blog says it’s more complicated than that. The blog notes that, in Trump’s first term, antitrust enforcement blended traditional Republican preferences for deregulation with skepticism for market concentration generally and Big Tech in particular. It even notes that the current FTC Chair, Lina Khan, has some unexpected supporters. With that in mind, the blog outlines the following possibilities for antitrust reform under a second Trump term:

– Possible antitrust enforcement consolidation … The One Agency Act … which passed out of the House Judiciary Committee in April 2024, would consolidate antitrust enforcement authority by transferring all FTC antitrust functions, employees, assets, and funding to the DOJ. The FTC would maintain its consumer protection authority. Similar legislation proposed to end the overlap in FTC and DOJ merger review and civil investigation authority has been previously unsuccessful, but the Act’s prospects for passage seem higher now given the Republican majorities in both houses of Congress. The FTC and DOJ’s informal clearance process for civil antitrust matters has been derided for inefficiency and would seem an easy focus for the DOGE’s prioritization of government efficiency.

– The FTC likely will take a less aggressive stances regarding the use of competition rulemaking and the exercise of enforcement powers under Section 5 of the FTC Act (e.g., the non-compete rule), as well as mothballing Robinson-Patman Act enforcement.

– Merger review is harder to predict and will be a mixed bag. … The Biden administration’s DOJ and FTC effectuated three significant merger review policy changes, and it is possible that all three may be reversed in the Trump Administration. … Aside from policy, the merger enforcement records of the previous few administrations is fairly consistent, but also difficult to gauge as we discussed in a previous post. In addition to the tech industry, transactions in the healthcare industry have consistently been subject to scrutiny across administrations. That said, we do think that one industry – private equity – will not be the target it has been under the Biden administration.

After this blog came out, President-elect Trump announced his selection of Andrew Ferguson, one of two current GOP commissioners on the five-member FTC, to chair the agency. This WSJ article focuses on the FTC’s expected approach to Big Tech under Ferguson, who said on X that he would “end Big Tech’s vendetta against competition and free speech.”

– Meredith Ervine