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I L T A N E T . O R G
T
he Monopoly man got it wrong: Apparently, you
can't own it all. The rise of mega-corporations has
led to mounting concern about market fairness
and competition and the potential harmful effects
on consumers. In response, antitrust laws were
created to prevent companies from forming monopolies and
obtaining more than their fair share of the market. And those
requirements have only become more stringent over the last
several years.
In this brief three-part series, we'll outline an action plan to
strengthen your organization for today's antitrust environment.
We'll begin with a quick backgrounder and move on to the first key
issue: communication.
Reacting to 'Underenforcement'
Though many of these laws have been in place for decades, we know
that politics play an integral role in shifting policy with respect to
the interpretation and application of the laws. President Joe Biden
made it clear that his administration will take a more aggressive tack
with American businesses: "We're now 40 years into the experiment
of letting giant corporations accumulate more and more power...I
believe the experiment failed." True to his word, the Department
of Justice sought to block eight corporate mergers and an alliance
between JetBlue and American Airlines by December 2022.
Biden additionally signaled his interest in antitrust
enforcement by appointing big tech critic Lina Khan as
Commission Chair of the Federal Trade Commission (FTC).
In September 2022, Khan testified before the Senate that the
evidence suggests an "underenforcement" of regulations has led
to a more concentrated market. Khan detailed the FTC's work
to halt that trend, committing to a reactivation of "the full set of
authorities" granted by Congress.
And data shows she wasn't kidding. In the few months
following her testimony, the federal government brought several
major antitrust actions against tech giants Microsoft, Meta,
and Google.
Proactive Communication
If the intensity of investigations continues trending upward,
organizations should focus on the factors they can control to be
prepared for an investigation – or risk severe penalties.
One thing we know for sure: Understanding the key
players needed to respond to a regulatory inquiry is integral to
a company's success. In addition to the governmental agencies
above there are four primary stakeholders involved in a
successful regulatory response effort: the company, its outside
counsel, a data/eDiscovery provider, and a review service
provider to analyze relevant documents. As Level Legal does,
one organization might handle both eDiscovery and review.
With so many cooks in the kitchen, proactive
communication between stakeholders is key. At the very least,
initial goal-setting meetings and regularly scheduled follow-
up meetings regarding the scope of the review, timing, budget,
and pertinent legal issues involved are essential to ensure the
trains are running on time. It's critical that all stakeholders are
aligned on both strategy and tactics; big things are made up
of little things – and it's the little things that most often create
unexpected havoc. ILTA
Jeff Guttman is Director of Client Services at Level Legal.
Before earning a law degree from Rutgers University, Jeff lived a
characteristically diverse and colorful life. Study of the great books in
college. Cotillion marshal in South Carolina. Lawnmower repairman
in suburban New Jersey.
