The 2022 Milton Handler Lecture: Refocusing Antitrust Enforcement On Competitors

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Shutterstock_1201562074Assistant Lawyer Basic Jonathan Kanter final week delivered extremely anticipated remarks in individual on the New York Metropolis Bar Affiliation, the place he was the keynote speaker of the 2022 Milton Handler Lecture. The pinnacle of the Antitrust Division of the Division of Justice, Mr. Kanter has been extensively anticipated to take a vigorous enforcement strategy. His Could 18 speech was a possibility to sign extra explicitly what that may seem like. And though he prevented any touch upon particular reality patterns, his remarks made clear that busy occasions are forward for the antitrust bar. 

Underneath Mr. Kanter’s management the touchstone of civil antitrust enforcement will likely be “defending competitors.” This marks an intentional departure from the “client welfare normal” that has predominated for the reason that Eighties. In Mr. Kanter’s view, “client welfare is a catch phrase, not a typical.” It “systematically biases antitrust towards underenforcement” by neglecting to acknowledge the breadth of aims that the Sherman and Clayton Acts had been initially meant to pursue. “Senator Sherman himself expressed a objective of defending not solely shoppers, but additionally sellers of crucial inputs, equivalent to farmers.” Mr. Kanter famous that the Supreme Court docket endorsed this broad conception within the 1958 Northern Pacific case, when it described the Sherman Act as a “complete constitution of financial liberty.”

Mr. Kanter argued that along with unjustifiably narrowing the scope of antitrust enforcement, the patron welfare normal is unintuitive and cumbersome to manage. “It can’t be {that a} enterprise attempting to know the legality of its merger should undertake months of study to supply a posh simulation mannequin, or {that a} courtroom should determine an antitrust case by deciding amongst dueling consultants’ white papers reporting on simulations.”

Relatively, Mr. Kanter believes we should “get again to first ideas and give attention to the insurance policies that Congress was attempting to advance in passing the antitrust legal guidelines.” Evaluation of the aggressive results of a merger ought to embody “real-world proof, economics, experience, and customary sense.” As Mr. Kanter put it, if “any person tells you that the NL East seems to be aggressive this yr, you perceive what they imply.”

Mr. Kanter took the chance to place corporations on discover that his staff “will stay vigilant and undeterred,” noting that the Division has already sought to dam anticompetitive offers within the airline and healthcare sectors. “Firms that check our resolve in these and different areas accomplish that at their very own danger and can proceed to confront aggressive antitrust enforcement. As one among my predecessors defined, some offers ought to by no means depart the boardroom.”

The occasion marked the newest installment of a distinguished antitrust lecture sequence that dates again practically half a century, and it was the primary Handler Lecture for the reason that pandemic. Craig Brown, CEO of Bridgeline Options (sister firm of Lateral Hyperlink) and Co-Chair of the NYC Bar’s Handler Lecture Subcommittee recognized Mr. Kanter as a possible speaker and met with him to clarify the Handler Lecture’s storied historical past. Mr. Kanter graciously agreed to take part. Craig’s connection to Milton Handler goes again a long time, to when Craig was an antitrust & litigation affiliate with Kaye Scholer and Professor Handler was nonetheless a working towards named associate of the agency (Kaye Scholer Fierman Hays & Handler).

Craig joined hosts Zach Sandberg and David Lat on this week’s episode of Movers, Shakers & Rainmakers. They mentioned Mr. Kanter’s remarks, in addition to Craig’s trajectory from antitrust lawyer to Bridgeline Options CEO. Persevering with the antitrust theme, the hosts additionally talked about Covington & Burling’s hiring this week of associate Ryan Quillian, previously the Deputy Assistant Director of the Know-how Enforcement Division on the Federal Commerce Fee.

Bridgeline Options pioneered the authorized staffing trade and established lots of its greatest practices. From Am Regulation 200 corporations, Fortune 500 corporations, and monetary establishments to boutique regulation corporations — organizations around the globe associate with us as their go-to authorized & compliance staffing associate. With places of work in over a dozen cities throughout america and Asia, we discover our attorneys momentary positions in each authorized market.

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