Antitrust law in 2022:New Laws, Old Power Struggles | LegaMart Articles
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Antitrust law in 2022:New Laws, Old Power Struggles

Introduction

Economic competition is regulated by antitrust laws to ensure fair trade practices. It aims to prevent restraints on trade created by trusts and other practices of large companies. These restraints often resulted in price-fixing, control of production, and control of geographical markets. There is growing recognition that these outcomes threaten the fairness of business practices in many states. 

After a Standard Oil trust was formed in 1887, the federal government recognized this issue and developed antitrust laws. Oil companies transferred their stocks to a trustee to create the Standard Oil Trust, which prevented other oil companies from competing effectively with them.

In 1890, the Sherman antitrust act was created, which formed the basis for subsequent antitrust laws. Despite the Sherman act’s successes, trusts continued to exist, and large companies held sway over industries. At the turn of the century, a few large companies controlled almost half of the nation’s manufacturing assets. 

The need for more legislation became apparent. President Theodore Roosevelt launched a campaign of more effective legal endeavors under the title “trustbuster.” It was in 1914 that several additional antitrust acts were passed, including the Clayton Act and the Federal Trade Commission Act. This legislation has been in effect since 1914 when Congress amended it to expand and strengthen its coverage. In the United States, it is estimated that antitrust laws save consumers millions of dollars annually by prohibiting business practices that unfairly raise prices.

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What is Antitrust Law?

A wooden hammer on which Antitrust Law is written

Many countries have broad laws protecting consumers and regulating how companies operate. As a result of these laws, similar businesses operating in the same industry are provided with an equal playing field so that they do not gain too much power over each other.

The US government developed antitrust laws to protect consumers from predatory business practices, also called competition laws. The rule of law ensures fair competition in an economy based on the free market. Market-driven laws have evolved to protect against monopolies and disruptions to the productivity and flow of competition.

The antitrust laws apply to various questionable business practices, including market allocation, bid rigging, price fixing, and monopolistic practices. 

The market would not be competitive or offer consumers different options if no such laws existed. Furthermore, consumers would have to pay higher prices and access limited products and services.

What is the Antitrust Reform Movement?

In 2021, new legislation was enacted to enforce antitrust laws in critical sectors, including life sciences and major technology. The Competition and Antitrust Enforcement Reform Act (CALERA), introduced in February by Democratic Senator Amy Klobuchar of Minnesota, is intended to give the FTC more power to block purchases, sales, and mergers. Provisions include lowering the threshold for assessing whether a merger or acquisition is prohibited under the Clayton Act from the current standard of “might substantially reduce competition” to “poses a significant risk of substantially reducing competition.” 

CALERA will also burden companies to demonstrate with certainty that their merger or acquisition will not harm competition. These provisions, along with the increase in the FTC’s budget and the creation of a division of the FTC to study merger impacts, will allow the government to challenge mergers easily.

Another important bill, the Platform Competition and Opportunity Act, was introduced in November by Senator Tom Cotton of Klobuchar, R-Arkansas, as part of a bipartisan effort to share critical elements of CALERA. The bill aims to shift the burden on tech companies to show that the proposed takeover is not anti-competitive by blocking takeovers in the “dominant online platform” sector.

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The Federal Trade Commission’s regulatory updates aim at improving the enforcement of Biden’s July executive order to “promote competition in the American economy,” which encouraged agencies to “aggressively” enforce antitrust laws, including regulations. That same month, the FTC adopted changes to its rulemaking process to facilitate the publication of the FTC’s new Unfair and Deceptive Practices (UDAP) rule. 

Changes include monitoring of justice in administrative law to the head of the FDC, removing reports on employees on the action, and reduction of public opinion. The last FDC request for public comments on contract terms on a detrimental contract, which could lead to restrictions on the use of its agreements. The FDC/TOJAY seminar on incompetent deals may be future rules that control business practice.

Why is there a Need for Reforms in the Antitrust Law?

Hand with stop sign to avoid collusion monopoly in Antitrust Law

Subcommittee head Amy Jean Klobuchar (who is a Democrat and works in Mr. Joe Biden’s office) presented the bill as the keynote speaker. He also recently announced the release of his book on Antitrust issues. She played an essential role in several critical antitrust reforms. She said that many reforms are needed to fight international companies in antitrust wars, adding that current laws are not strict enough and contain various loopholes that companies use to avoid official antitrust investigations. She also pointed to the court’s misinterpretation of antitrust laws.

According to her, “The Big 5 tech companies (Google, Facebook, Amazon, Apple, Microsoft) will always be vigilant because of their dominant monopoly on the market for tech products and services.” Passing this measure would bring the companies under the same jurisdiction and increase scrutiny of certain mergers that could undermine competition rules.

Brief Explanation of Competition and Antitrust Law Enforcement Reform Act

The legislation aims to achieve the following, as stated in the document:

  • Raise the bar for dominant players looking to merge, take over, or merge other players.
  • Approval of the revised budget for the Antitrust Office of the Department of Justice. 
  • Establishes an independent and impartial office of antitrust counsel with the Federal Trade Commission to conduct market research, analyze mergers and handle consumer cases.
  • Increased rewards and incentives for whistleblowers.
  • The “monopoly” ban makes it difficult for companies to demonstrate that the merger will not affect the market.

What are the Significant Amendments in the Antitrust Law 2022?

Sheilding a circle of people from unfair market practices as per Antitrust Law

New Antitrust Management Budget – This measure proposes an additional $300 million to the Federal Trade Commission and the Justice Department’s Antitrust Division. It avoids being passive or lacking the necessary financial support, allowing institutions to focus entirely on their work and protect market competition. Officials can now conduct investigations and reviews of antitrust proceedings.

Strengthening standards of anti-competitive behavior – Current regulations exempt various mergers and acquisitions that fall short of legal standards. Thus, despite the potential risks, several transactions were concluded that could affect competition. The new legislation aims to correct mergers that inhibit competition and raise the bar for advancement. Attempts to restore and implement the provisions of Section 7 of the Clayton Act. As amended, it prohibits mergers that significantly adversely affect competition. Companies that abuse loopholes in the regime currently face stiff penalties and fines.

Shifting the Burden of Proof – After successfully implementing the measure, the “burden of proof” is shifted to the parties to the transaction. Currently, the burden of proving that a given merger will significantly affect competition (AAEC) rests with antitrust authorities and officials. The burden of proving that a merger resulting from a post-amendment merger or acquisition will not create an AAEC is on the merger or acquisition.

Enhanced liability for exclusive conduct – In an exclusive action, parties must demonstrate the harm caused by the dominant player to their competitors and the negative impact on the relevant market. Recently amended rules now allow companies to sue dominant players if they have more than 50% market share or are found to be worth more than $5 billion in transactions.

New civil penalties – New Federal Trade Commission and the Justice Department rules impose higher fines and penalties. The amount is set at 15% of the annual income of the criminal and 30% of the victim’s income.

Repeal of the requirement to indicate the relevant market – The bill also reduces the requirement to provide clear information about the relevant market in which the party occupies a dominant position. Before executives can be found guilty of collusion or anti-competitive agreement, they must provide details of the relevant markets to proceed.

Creation of the office of the antitrust counsel at the Federal Trade Commission – This bill establishes the Office of Antitrust Counsel at the Federal Trade Commission. Thus, the FTC will have its counsel manage each case on antitrust and related matters. In addition, the bill tries to establish systematic and systematic studies of market factors by examining the reports of the FTC and DOJ.

Conclusion

Antitrust law promotes competition by ensuring that businesses operate fairly. Large corporations dominated markets during the robber baron era, which led to the creation of antitrust laws. Antitrust law aims to prevent monopolies and unfair business practices from developing within one market by preventing any single business entity from gaining too much control over one area. Among how antitrust law accomplishes this is by prohibiting certain business practices, like price fixing, bid rigging, and market allocation.

If you are someone who is straddled between regulatory issues, navigating through competition issues, or feel that you are a victim of shady business practices, then it’s always a good idea to consult a legal professional and discuss your issues. If you are confused about whom to go with your queries, then LegaMart is here for you. The informative blogs and experienced lawyers provide the missing piece of the legal ecosystem to help you find the best lawyer for your situation.

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