Supreme Court Nominee Brett Kavanaugh’s Antitrust Record

Posted by Arnold & Porter

Supreme Court Nominee Brett Kavanaugh’s Antitrust Record

By Sarah LichtJohn A. Rackson, Arnold & Porter

On July 9, 2018, President Trump announced the nomination of DC Circuit Judge Brett Kavanaugh to fill Anthony Kennedy’s seat on the US Supreme Court, in light of Justice Kennedy’s retirement effective July 31, 2018. This Advisory reviews Judge Kavanaugh’s approach to antitrust law as reflected in his opinions.

Since Judge Kavanaugh joined the DC Circuit in 2006, he has weighed in on two significant mergers and a number of other antitrust issues. Judge Kavanaugh has been skeptical of government efforts to block mergers, dissenting from the majority in United States v. Anthem, Inc. and F.T.C. v. Whole Foods Market on efficiencies and market definition grounds.

MERGER CASES

Most recently, Judge Kavanaugh dissented from the majority in United States v. Anthem, Inc., in which the court affirmed the district court’s injunction preventing the proposed $54 billion merger of two health insurance companies, Anthem and Cigna. The majority rejected Anthem’s argument that efficiencies created by the merger would outweigh any anti-competitive effect. The majority opinion also questioned the proper weight given to efficiencies in merger analysis.

In his dissent, Judge Kavanaugh agreed with Anthem. He argued that even though evidence showed that Anthem would raise fees on its employer customers anywhere from $48 million to $930 million a…

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