The year 2016 has proved to be yet another active one in antitrust and competition law. Government regulators continued their rigorous enforcement approach, particularly on the merger front, while important principles and doctrines of private enforcement continued to evolve and multiple foreign jurisdictions continued to expand both their administrative and private antitrust regimes. Of course, the November election of Donald J. Trump to the presidency has generated not unexpected speculation about the future direction of antitrust in the U.S., particularly with regard to merger enforcement. All told, 2017 portends to be an even more interesting year than 2016, but potentially because of less antitrust activity and enforcement.
Merger Enforcement
The Federal Trade Commission (FTC) and Department of Justice’s Antitrust Division (DOJ) had some high profile successes in merger enforcement this past year. In May, Staples and Office Depot abandoned their proposed merger in the face of an FTC challenge and the granting of a preliminary injunction by the U.S. District Court for the District of Columbia.1 The FTC argued, successfully, that Staples and Office Depot were the only meaningful competitors capable of servicing the market for office supplies purchased by very large customers (i.e., Fortune 100 companies)—so called business-to-business or “B2B” transactions. Such a “2-to-1″ merger triggers a “structural presumption” of anticompetitive effects, which the defendants were unable to rebut despite their argument that Amazon Business was a strong, emerging competitor that would provide a viable option in this product space.
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