Antitrust Alert #2
Despite the GOP’s strong showing in the 2024 Presidential election, fissures within the party around a host of issues - from national security, to trade, to antitrust enforcement – remain. In antitrust, specifically, there is a clear split between a growing faction of Republicans who want to continue the aggressive approach of the Biden Administration and those who would like to see it softened. In our last update, we argued that such a split would mean the Trump Administration’s direction on antitrust and competition policy would be wholly influenced by personnel choices. Now, with the two latest high-profile nominations both supportive of more forceful enforcement, it’s clearer which direction policy will take.
Former Florida Attorney General Pam Bondi and Robert Kennedy, Jr., nominated for the Department of Justice and the Department of Health and Human Services, respectively, have each spoken out about concentration in the economy and their broad support of assertive antitrust enforcement. Ms. Bondi’s nomination also comes after the withdrawal of Matt Gaetz, himself a proud “Khanservative” supporter of Biden FTC Chair Lina Khan, who was similarly strict on competition enforcement. In both cases, this preference toward a more assertive approach will have direct influence on various transactions and enforcement decisions within their jurisdictions.
Department of Justice- Pam Bondi, Attorney General Nominee
The Department of Justice is one of the two agencies that reviews mergers and enforces key antitrust statutes. If confirmed as Attorney General, Bondi will oversee each of the law enforcement agencies and divisions that make up the DOJ, including the Antitrust Division, which is currently reviewing hundreds of mergers and active litigations.
As Florida Attorney General, Ms. Bondi compiled a fairly active record on antitrust matters, using her office to challenge mergers in healthcare (Aetna-Humana and Anthem-Cigna) and airlines (American-US Air). However, it was in conduct cases, especially in tech, where she was especially vigorous. During her time in office, Florida signed onto complaints challenging Apple’s e-book pricing, Facebook’s dominance in social media, and Google’s monopoly position in internet search. She later also joined with 35 other states to pursue antitrust action against Indivior and MonoSol Rx for conspiring to keep generic versions of Suboxone from entering the marketplace, and launched an investigation into price fixing in the poultry markets - an investigation which tracked later USDOJ actions against the industry. In 2019, she joined Ballard Partners where she registered for some companies that have faced antitrust and consumer protection scrutiny, such as Amazon and Uber. Still, it should be noted that, per lobbying disclosure reports, her lobbying involved issues around COVID relief rather than antitrust.
This track record could indicate how she will help to shape the resolution of high-profile litigations she’s taking over, as while she does bring a history of antitrust action, its strength is not likely central to why she was nominated, and there’s a chance her worldview could be impacted by those around her. President-elect Donald Trump, for example, has often spoken about the need to “break up Big Tech,” but has recently sounded a note of conciliation. Bondi will be tasked with addressing cases against Google, Apple, and Live Nation, the most immediate of which will be remedies for the finding of liability in the Google search case, where the Justice Department just filed its proposed final judgment that could see the divestment of Chrome and curtailing of its investments in AI. How this is ultimately resolved will be a major decision for the Administration in its first 100 days, and an indication of which side Bondi intends to align herself with in the longer term.
Department of Health and Human Services- Robert Kennedy, Jr.
HHS has only limited direct antitrust authorities, but early in the Biden Administration, an Executive Order on competition provided HHS with various mandates such as bringing down the price of insulin and opening up the market for hearing aids. It is likely that these ideas will filter into Kennedy’s proposal for his leadership of the Department, as he has already shown interest in changing how the government codes medical care for reimbursement through Medicare. Kennedy has also pointed to deconcentrating the food, hospital, and pharmaceutical marketplaces as an important plank in his Make America Healthy Again campaign, labeling large food producers as part of the “food industrial complex” and stating that the power of “large agricultural companies” is keeping farmers and ranchers from producing healthier foods. While the Department of Health and Human Services plays a minimal official role in antitrust, Kennedy’s approach does raise the specter that M&A activity in certain industries such as food, pharmaceuticals, and agriculture could face unexpected political headwinds in Trump 2.0.
Both Bondi and Kennedy’s nominations indicate a stronger shift toward aggressive antitrust enforcement than might have previously been expected, though only time will tell to what extent such policies will be prioritized. Still, companies especially in healthcare and tech should prepare for at least heightened scrutiny, if not a regulatory environment that continues to prioritize breaking up large conglomerates and promoting market competition, impacting strategic decisions and compliance measures in the near future.
This article is part of a series examining Antitrust in the new administration from FGS Global’s Partner & Global Head of Competition Josh Tzuker. Click here to read the first in the series. Click here to learn more about our Antitrust and Competition capabilities.
Stay tuned for further updates from FGS Global on our website and LinkedIn.
