Biglaw (Davis Polk) On Populist Antitrust

Although it doesn't cause got the same refer recognition equally a Skadden, Arps or Linklaters, the refer Davis Polk carries around serious cachet inward sure enough circles.

From the Columbia Law School Blue Sky blog:

Davis Polk Discusses the New Populist Movement in Antitrust

In recent years, a novel populist schoolhouse of antitrust thinking has emerged, known equally “Neo-Brandeisian” to its proponents as well as “hipster” to its detractors.  There are varying formulations of this movement, but proponents to a greater extent than oftentimes than non indicate to the purported growth inward economical concentration as well as corporate profits inward the U.S. economic scheme to advocate for to a greater extent than aggressive antitrust enforcement, alongside honor to both mergers as well as other conduct.  One notable chemical component of this drive is a force to expand or fifty-fifty supplant the established “consumer welfare” standard—which focuses on prices as well as outputs inward balancing potential competitive harms against procompetitive efficiencies—by adopting a to a greater extent than stiff presumption that corporate “bigness” as well as large marketplace percentage inward themselves impairment consumers.  Some proponents, moreover, advocate for consideration of nontraditional factors inward antitrust analysis, such equally wages, occupation levels, or growing inequality.

Such approaches, which could significantly growth the burden on merging parties as well as allegedly dominant firms, cause got gained back upwards from prominent figures on both the left as well as the right.  Nevertheless, hence far, the novel populism has non made notable inroads alongside antitrust practitioners, antitrust enforcement agencies, or the courts.  The differences betwixt long-standing exercise as well as the novel progressive antitrust proposals cause got come upwards into abrupt focus inward recent weeks, taking view phase at the FTC’s ongoing “Hearings on Competition as well as Consumer Protection inward the 21st Century.”

Could populist antitrust proposals supplant the established consumer welfare framework for antitrust analysis inward the United States?  Whether the novel populist antitrust agenda volition convey concord depends on the extent to which it tin persuade the antitrust enforcement agencies, Congress, as well as the courts—all of which are interrelated as well as influence i another—of its underlying bear witness as well as policy prescriptions.  Indeed, the willingness of i of these authorities institutions to advance or refuse populist perspectives could touching on how opened upwards the others volition last to revising antitrust thinking.

It is likewise early on to enjoin whether whatever pregnant modify volition occur, or whether that modify volition reverberate a cardinal deviation from or but to a greater extent than aggressive enforcement inside the existing framework.  It is clear, however, that antitrust policy is inward the midst of an of import ground that could touching on how antitrust agencies evaluate describe of piece of work organisation conduct, potentially increasing burdens on merging parties, raising the likelihood of pregnant divestiture requirements, as well as limiting the describe of piece of work organisation activities inward which firms alongside large marketplace percentage tin engage.  This customer memorandum examines the pith elements as well as growing influence of the progressive antitrust movement, reviews its possible credence yesteryear authorities institutions, as well as considers whether it could modify the consumer welfare measure equally the framework for antitrust analysis inward the U.S.

Introduction
Debate over the appropriate measure for evaluating the competitive effects of describe of piece of work organisation transactions as well as describe of piece of work organisation comport has long existed inward the United States, alongside the dominant ideology shifting over time.  Antitrust view emerged during the Gilded Age of the 1880s inward the midst of populist concern over growing corporate concentration as well as power, alongside both Democrats as well as Republicans rallying against the “trusts” that had come upwards to dominate commerce.  During the Progressive Era that followed, Congress enacted the Sherman as well as Clayton Acts, as well as antitrust suits led to the breakup of corporate entities that restrained merchandise as well as manipulated markets.  Following the First World War, however, American hostility to large describe of piece of work organisation began to fade as well as antitrust enforcement ebbed.

By the 1960s, however, the pendulum had swung dorsum to aggressive antitrust enforcement, specially against mergers.  The leading perspective at the fourth dimension was that consolidation was inherently bad as well as that efficiency provided scant justification inward contest reviews.  This thinking allowed the antitrust agencies to block mergers without putting frontwards much bear witness that the mergers were probable to impairment competition.  For example, during this era the Supreme Court held that the merger of the tenth as well as 18th largest beer brewers inward the U.S. (resulting inward a combined national percentage of 4.49% as well as no higher than 24% inward whatever state) was a violation of the merger laws inward lite of “a history of concentration inward the beer industry.”BigLaw: "Latham & Watkins Discusses SEC Charges Against BitFunder as well as the State of Digital Asset Trading"
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The writer is a commissioner on the SEC as well as a recovering academic.
(enough footnotes to brand Matt Levine envious)  

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