This week the ABA Antitrust Law Section’ holds its Spring Meeting. The program offers dozens of sessions, each of which features debate by a panel of experts from government, academia, or private firms on a topic of current interest.

This post reflects my notes from a talk about how well the administration of President Biden has done in making its high hopes for reviving antitrust enforcement, both in the two agencies that have enforcement as a primary mandate—the Antitrust Division in the U.S. Department of Justice and the Bureau of Competition in the Federal Trade Commission—and in other parts of the executive branch.

Shayla Alfonso, Perkins Coie LLP: Let’s have a vote on whether the Biden administration’s antitrust policy, including the Executive Order (EO) on a whole-of-government approach to competition, has had more bark or more bite. I see more hands up for bark than for bite. What do panel members think?

Ian Conner, Latham & Watkins LLP: The idea of no bite in the last 40 years does an incredible disservice to enforcers. The EO covers a lot. 

On merger enforcement, the EO reflects hostility to mergers. 65 second requests came in last 4 mos. of Trump and first 8 mos. of Biden. That doesn’t reflect a big shift—only 4 more than previous 12 mos. I expect number to increase in the ensuing 12 mos. 

The merger enforcement challenges have dropped a lot. The Federal Trade Commission (FTC) maintained its number of challenges, but settlements have definitely dropped.

As for labor, we’ve seen a big shift in approach to labor effects, including the pending rule-making on noncompete agreements.

The revisions to the merger guidelines the Antitrust Division and the FTC’s Bureau of Competition use haven’t come out, but we expect them in several weeks and anticipate the changes will tighten standards, make some defenses drop away, and expand nascent competition and potential competition concepts.

Matt Stoller, American Economic Liberties Project: You should count yourselves so fortunate. You live in Florence during Renaissance. You have a chance to repair so many things that have gone wrong. Roger Altman on MSNBC says at least 20 percent of deals that normally would have gone through haven’t happened.

The EO came out of a 2016 EO, which in turn responded to the uneven impact of the 2008-09 financial crisis across the income and wealth spectrum. The Biden EO says the President sees monopoly as a real problem. The fact that the President said that matters.

Effects include Department of Transportation’s opposition to the JetBlue deal with Spirit and/or American Airlines and the Commodity Futures Trading Commission’s action to lower overdraft fees.

Biden himself criticized Robert Bork’s consumer-welfare standard framework.* That matters.

Renate Hesse, Sullivan & Cromwell LLP: Biggest goal of EO aimed at aligning agencies with giving priority to competition. Agencies typically haven’t given that issue much attention. Some agencies haven’t fallen in line.

Alfonso: Does the Biden approach create opportunities for business?

Hesse: It gives complainants opportunities. It also enables companies to discuss old rules with agencies. 

Stoller: The anti-monopoly movement favors business, but it favors small and medium sizes. They feel under siege by coercive arrangements. The time also offers chances to bring cases, partly because business people have a positive view of antitrust.

Hesse: Can we help small business through antitrust in a global economy. I doubt antitrust will solve income inequality, loss of jobs, and so forth. Merger enforcement won’t do it.

Stoller: No disrespect,** but you don’t know what happens. Pharmacies do a great job, for example, but pharmacy benefit managers (PBMs) squeeze them out with their power over reimbursement. People understand that big companies take advantage of their power. It’s not complicated.

Hesse: I said only that antitrust by itself won’t remedy social and economic ills.

Alfonso: What can we glean from the bad outcomes in labor cases?

Hesse: We gave notice during President Obama’s second term that we might bring criminal cases due to conduct in labor. But juries have more sympathy for small businesses. Case selection matters a lot.

Alfonso: Merger enforcement?

Conner: We see more labor issues in second requests the agencies make under Hart-Scott-Rodin They ask about unionization issues, reductions in force, and the like. They don’t result in challenges that focus on labor, with the exception of Random House, but flavor otherwise viable cases. I think they will go nowhere as a stand-alone basis for contesting mergers.. 

Stoller: Data show tremendous consolidation in labor markets. People sense that consolidation hurts job choices and compensation. The Microsoft/Activision merger got support from game developers.

Hesse: On the noncompetes rule making, we don’t know what the rule will say, but we infer it will allow rescission and that a sale of business will allow a narrow exception to the ban. It will face challenges, including by the Chamber of Commerce. People should look at the sorts of noncompetes they have with employees and others to prepare for the impending rule.

Michael Lee, JPMorgan Chase Bank, N.A.: The noncompete-ban idea has already happened in some states, notably California. If a ban comes out, people might use nondisclosure agreements, laws against the theft of trade secrets, and other contract terms.

Alfonso: Let’s discuss the Robinson-Patman Act (RPA) and the notion of unfair methods of competition as broader than the Sherman Act.

Conner: The FTC Act’s Section 5 doesn’t ban things that the Sherman Act doesn’t. The FTC errs in thinking that Section 5 doesn’t require market definition, anticompetitive effects, and so forth. 

Stoller: The FTC’s policy statement does require an effect on competitive conditions. The statement ties to Supreme Court precedent. Louis Brandeis at the time the FTC Act came into existence cited the moral grounding of the precepts against the abusive conduct.

Conner: The argument proves too much. Some say FTC Act Section 5 plugs gaps, such as price discrimination that the RPA 22 or so years later didn’t prohibit, but I disagree.

Alfonso: What enforcement initiatives can we expect?

Conner: We can anticipate limits on noncompetes.

Hesse: Interlocking directorates will come under increasing scrutiny.

Stoller: I foresee attention in several areas. Look at things on which the FTC has initiated studies, including PBMs and supply-chain issues.

Alfonso: What industries will get attention?

Stoller: Regarding insulin, the FTC might pursue unfair methods of competition cases asserting commercial bribery as per se bad against PBMs and group purchasing organizations (GPOs). 

Conner: Look for an RPA theory challenging a buyer’s knowing receipt of a bigger discount than its competitors get.

Alfonso: Why did RPA enforcement decline to almost nothing?

Hesse: I suspect the difficulty of the statutory language and the exceptions it specifies discourages enforcement. Also, people have a general view that RPA divorces cost from price and could lead to higher prices.

Stoller: Commissioner Bedoya said we have no data on the effects of RPA. The RPA has made a comeback due to a sense that monopolization explains the bad effects in the economy during and since the financial crisis.

Alfonso: Recent surveys of employees show a big drop in satisfaction. What accounts for that?

Conner: The claim that the dissatisfaction resulted from unhappiness over finally having to enforce the antitrust laws is untrue. The level of enforcement doesn’t correlate with satisfaction. The drop in satisfaction coincides with fewer enforcement action. Tim Wu, on the other hand, said the recent wins didn’t arise from chickenshit lawyers bringing winnable cases. The drop in morale has produced a big bump in departures of senior staff, depleting the FTC’s ability to bring and win cases pursuing edge-expanding theories.

Alfonso: Any questions?

Audience member: Do enforcement agencies have the right mix or portfolio of cases to achieve their ambitions?

Hesse: I believe so.

Alfonso: Thank you to the panel and the audience.


*See Robert Bork, The Antitrust Paradox: A Policy at War with Itself (1978).

**Channeling the lead character in Talladega Nights: The Ballad of Ricky Bobby (2006).

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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.