• 2010 Developments and What to Expect in 2011
  • February 4, 2011 | Authors: Peter Guryan; Damon J. Kalt; Bernard (Barry) A. Nigro; Richard C. Park
  • Law Firms: Fried, Frank, Harris, Shriver & Jacobson LLP - New York Office ; Fried, Frank, Harris, Shriver & Jacobson LLP - Washington Office
  • With 2010 as a guide, the U.S. antitrust agencies likely will continue their campaign to “reinvigorate antitrust enforcement” in 2011. This past year, the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”) further implemented the Obama administration’s policy of more active antitrust enforcement by applying increased scrutiny to mergers, both those subject to the reporting requirements of the Hart-Scott-Rodino (“HSR”) Act as well as non-reportable, consummated transactions. The antitrust agencies also demonstrated a proclivity for exploring non-horizontal theories of competitive harm and imposing behavioral remedies either to enhance or replace more traditional structural relief. In addition, the FTC and DOJ released revised Horizontal Merger Guidelines (the “New Guidelines”), which provide the antitrust agencies with greater flexibility and the means for potentially more aggressive merger enforcement. Moreover, the agencies showed early signs of implementing this policy shift beyond mergers and were more active with respect to single-firm conduct and anticompetitive agreements.