ANALYSIS: Is Antitrust Litigation at a Crossroads in 2021?

By Eleanor Tyler (Bloomberg)

Antitrust litigation, in the form of both public and private enforcement, looks to be entering a period of serious upheaval.

Both the U.S. and the European Union have begun a fundamental policy debate about the purpose of their antitrust laws, their appropriate scope, and who should be allowed to enforce them. As this debate simmers among U.S. antitrust stakeholders, for the first time since the 1970s, the practice may be in for a tectonic shift.

The four developments with the most potential to impact antitrust and trade litigation in 2021 are:

  1. the introduction of possible new tools for enforcers,
  2. the pending Supreme Court cases that could kick the FTC out of the consumer redress business,
  3. the court battle over further narrowing the right to bring class actions, and
  4. the rise of more enforcers worldwide.

New Enforcement Tools?

The U.S. and EU have separately proposed to give enforcers new tools to attack anticompetitive conduct. Both attempt to address how digital markets differ from traditional markets, and what many perceive as overweening power for a few digital platforms. The reforms could spell a reset of digital markets, and of antitrust law more broadly, in 2021 and beyond.

A much-awaited report from the U.S. House of Representatives proposes sweeping legal changes to private and public antitrust enforcement to “recalibrate” U.S. antitrust law. It also puts a bullseye on the back of the tech giants.

Among other recommendations, the House report advocates moving the U.S. toward an “abuse of dominance” standard like the EU’s. It also supports legislatively erasing court precedents that have critically narrowed the path to winning lawsuits filed under Sherman Act § 2.

Given that the last major change to U.S. antitrust statutes was in 1976, if enacted, the proposed changes likely would begin at least a decade of new lawsuits reckoning with concentrated markets. Meanwhile, the DOJ has challenged Google Inc.‘s online empire under the existing law, a rare public enforcement case alleging monopoly.

The report’s recommendations are controversial, and the outcome of the U.S. Senate elections likely will dictate whether legislative change materializes. David Cicilline (D-RI), the chair of the House Judiciary Committee’s Antitrust Subcommittee, has pledged to propose legislation based on the report as soon as possible.

In the EU, the Competition Commission has proposed a “new competition tool” that would permit the commission to intervene in tipping markets even before a player becomes dominant. The proposed new tool will be part of a Digital Markets Act for use in those markets, where the “winner take all” effect makes early action crucial to preserving competition. It could still be used outside of digital markets, because the tool isn’t yet a reality. But even in limited use, the proposed tool represents a radical change for EU enforcers: an experiment in stopping potential problems to competition before they mature into legal violations.

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