The 2022 Milton Handler Conference: Refocusing Antitrust Enforcement on Competition

Assistant Attorney General Jonathan Kanter delivered a long-awaited statement last week Remarks in person at the New York City Bar Association, where he served as the keynote speaker for the 2022 Milton Handler Conference. vigorous application. His May 18 speech was an opportunity to point out more explicitly what that might look like. And while he avoided commenting on specific factual patterns, his remarks made it clear that tough times lie ahead for the antitrust bar.

Under Mr. Kanter’s leadership, the touchstone of civil antitrust enforcement will be “competition protection”. This marks an intentional break with the “consumer welfare norm” that has prevailed since the 1980s. According to Mr. Kanter, “consumer welfare is a slogan, not a norm”. He “systematically steers antitrust toward under-enforcement” by failing to recognize the breadth of goals that the Sherman and Clayton Acts were originally intended to pursue. “Senator Sherman himself has expressed the goal of protecting not only consumers, but also sellers of necessary inputs, such as farmers.” Mr. Kanter noted that the Supreme Court endorsed this broad conception in the 1958 decision North Pacific case, when he described the Sherman Act as a “comprehensive charter of economic freedom.”

Mr. Kanter argued that in addition to unduly narrowing the scope of antitrust enforcement, the consumer welfare standard is unintuitive and cumbersome to administer. “It may not be that a company trying to figure out the legality of its merger must undertake months of analysis to produce a complex simulation model, or that a court must decide an antitrust case deciding among white papers of dueling consultants reporting simulations.”

On the contrary, Mr. Kanter thinks we need to “get back to first principles and focus on the policies that Congress was trying to advance by passing the antitrust laws.” The assessment of the effects of a merger on competition should include “hard evidence, economy, expertise and common sense”. As Mr Kanter put it, if ‘someone tells you the NL East looks competitive this year, you know what they mean’.

Mr. Kanter took the opportunity to warn companies that his team “will remain vigilant and undeterred,” noting that the Department has previously sought to block anti-competitive agreements in the airline and health sectors. “Companies that test our resolve in these and other areas do so at their own risk and will continue to face aggressive antitrust enforcement. As one of my predecessors explained, some transactions should never leave the meeting room.

The event marked the latest installment of a distinguished antitrust lecture series it goes back almost half a century, and it was the first Handler conference since the pandemic. Craig BrownCEO of Bridgeline Solutions (sister company of Lateral Link) and Co-Chair of the New York Bar’s Handler Conference Subcommittee identified Mr. Kanter as a potential speaker and met with him to explain the history of the Handler Conference. Mr. Kanter graciously agreed to participate. Craig’s connection to Milton Handler dates back decades, when Craig was an antitrust and litigation partner with Kaye Scholer and Professor Handler was still a serving named partner of the firm (Kaye Scholer Fierman Hays & Handler).

Craig joined hosts Zach Sandberg and David Lat this week episode of Movers, Shakers & Rainmakers. They discussed Mr. Kanter’s remarks, as well as Craig’s trajectory from antitrust lawyer to CEO of Bridgeline Solutions. Continuing the antitrust theme, the hosts also spoke about Covington & Burling’s hiring this week of a partner Ryan Quillianformerly Assistant Deputy Director of the Technology Application Division at the Federal Trade Commission.


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Angela C. Hale