It’s not that hard to predict. If you want to factor the antitrust forecast into your business plans, you have two weather patterns looming. We can assess the first one quite accurately already. And notwithstanding all the speculation, we can get a pretty good feel for the second front as well.
Forget about the first 100 days. The first phase of the new antitrust era will last a good six months, and could stretch out longer. The immediate outlook? More of the same. If you are responding to an investigation, if you have a deal pending, the wind is hardly going to shift. Your encounter next week or next month will remind you of your last meeting. If you have negotiated a deal with the staff, don’t expect them to change their mind. And don’t expect them to postpone the proceeding. Virtually all the officials who are looking at your matter today will be handling it this winter, and probably next spring. That goes from bottom to top.
I’ve worked through the last five transitions at FTC and DOJ (inside the agencies during one), and I don’t recall a single administration that had its full antitrust team in place before the cherry blossoms staged their show. We may know who the new agency heads will be by next spring, but how they operate will remain to be seen. New FTC Commissioners and Assistant Attorneys General must be nominated by the President confirmed by the Senate. (Of course, a sitting FTC Commissioner could be given the Chair and an acting head could be named at DOJ’s Antitrust Division). These decisions typically do not come in the first wave of appointments.
Once the new heads are announced, confirmed and sworn in, the first thing they will do is assemble their teams. It takes time to recruit bureau directors, deputy assistant attorneys general and front office personnel. It takes more time to coordinate and deploy them. Meanwhile, the career civil servants, who occupy all but a few positions at the agencies, will continue to do the daily work of law enforcement.
Sometime next summer the second phase will probably begin, but we won’t notice it right away. We will hear about it in speeches, and some of us may experience it first-hand with investigative requests, but it will take another year or two before most businesses feel its effects. The reason is simple. Every new administration inherits the pipeline of the last one, and right now at the antitrust agencies that pipeline is full. It takes months for an agency to devise new strategies and much longer to convert them into enforcement initiatives. We should not expect to see the results of new approaches until year two or three of the administration.
What might we see in the way of a course correction? Don’t expect a pirouette. The history of transitions in the last three decades suggests that antitrust enforcement in the future will look remarkably like it does today. The debate over enforcement today (and there was a debate in the campaign) does not portend the end of that history. Ironically, most of the criticism of current enforcement has come from advocates of more, not less, regulation than the current administration imposed. By and large, there is consensus about the policies at FTC and DOJ.
One more factor suggests that the antitrust we know today is a good barometer of the antitrust we’ll face tomorrow. Antitrust is, after all, law enforcement. The agencies don’t get to make the law they enforce. It comes from century-old statutes that Congress is not likely to change. The interpretation of those statutes is in the hands of federal judges, whose decisions have placed limits on the agencies’ options. We know they are not going anywhere soon.
It is always fun to speculate about the storms that might sweep through antitrust. But we have no basis to predict abnormal weather patterns in the seasons ahead. We know where the trouble is likely to arise, and we should be able to avoid it. It makes perfect sense to plan now for an uneventful voyage.
Bill MacLeod is the Chair of the Antitrust and Competition Section at Kelley Drye & Warren. For 2016-17, he also Chairs the Antitrust Section of the American Bar Association. These views are his own.