A Focus on Price: Antitrust in the Kavanaugh Era

Posted by New York Law Journal

A Focus on Price: Antitrust in the Kavanaugh Era

By Shepard Goldfein and Karen Hoffman Lent 

With confirmation hearings looming for DC Circuit Judge Brett Kavanaugh, President Trump’s Supreme Court nominee to replace retiring Justice Anthony Kennedy, senators will prepare to probe Judge Kavanaugh’s judicial record on various matters—including antitrust law. But unlike Justice Gorsuch—who was confirmed to the Court in Spring 2017—Judge Kavanaugh was neither an antitrust professor nor an antitrust practitioner, and has heard few antitrust cases while on the bench.

Although Judge Kavanaugh’s antitrust experience is relatively sparse, his doctrinal preferences seem anything but. Dissenting in two merger reviews, FTC v. Whole Foods Market and United States v. Anthem, Judge Kavanaugh expressed support for both mergers and indicated his desire to shift antitrust law towards a “modern” doctrine that stresses pricing and economic data. F.T.C. v. Whole Foods Mkt., 548 F.3d 1028 (D.C. Cir. 2008) (Skadden Arps represented Wild Oats at the trial level in the matter); U.S. v. Anthem, 855 F.3d 345 (D.C. Cir. 2017).

If confirmed, Judge Kavanaugh may have the chance to leave his mark on antitrust law, and his Whole Foods and Anthem dissents may provide clues as to how.

‘FTC v. Whole Foods Market’

In Whole Foods, a divided DC Circuit reversed the district court’s denial of a preliminary injunction to block a merger between Whole Fo


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