Nearly three years ago, new leadership was appointed to head the Federal Trade Commission and the Department of Justice Antitrust Division and have since upheld the Biden administration’s promise to pursue rigorous antitrust enforcement. These self-styled “New Brandeisians” believe that antitrust enforcement over the past 40 years of both Democratic and Republican administrations has been a total failure and promised change. The goalposts were to be moved. An enforcement priority for leadership at both agencies was, and remains, stopping deals that they consider never should have left the boardroom. To that end, agency leadership have introduced a wave of policy changes, while simultaneously investigating and challenging mergers based on theories stretching the bounds of traditional antitrust law. The agencies’ unpredictability and increased appetite for litigation risk have resulted in parties and their counsel focusing on the heightened risk for M&A—even for traditionally “low risk” deals.
So, what is the record of the Biden administration? Both FTC Chair Lina Khan and DOJ Assistant Attorney General Jonathan Kanter have rigorously pursued their policy agendas, but their record in court has been mixed at best. The process is certainly more burdensome, but have the goalposts actually moved?
