The head of the DOJ's Antitrust Division, Christine Varney, has done a lot to change the Division's orientation on enforcement of Sherman Act section 2, which makes monopolization and attempts to monopolize unlawful. A big step involved withdrawing the section 2 "report" that the AD issued under Ms. Varney's predecessor. She has also joined with the other federal agency that can bring section 2 cases, the Federal Trade Commission, in sponsoring "workshops" to look at revitalizing the DOJ's and FTC's "Horizontal Merger Guidelines".
Yesterday, Ms. Varney came out with an overview of the issues she's identified in connection with the workshops. Her synopsis looks to Blawgletter's eye to lend further support to predictions that the AD on Ms. Varney's watch will take a much more assertive stance in questioning mergers and acquisitions of and by actual and potential competitors. The conditions the Division has placed on recent deals (e.g., Tickemaster/Live Nation and Dean Foods) also fit with that reading.
But does any of it matter? The Antitrust Division and the FTC may threaten to bring, and actually bring, more actions to stop M&A activity or to undo combinations after the fact; but will edits to the HMG change the law? Don't the agencies still have to persuade the U.S. courts of appeals and Supreme Court to adopt their views?
We expect that few lawyers on the plaintiff side of antitrust cases will draw great comfort from revitalization of the merger guidelines, however much we appreciate it. Real change will come when appellate courts cite and adopt the new HMG.