Assistant Attorney General Jonathan Kanter last week delivered highly anticipated remarks in person at the New York City Bar Association, where he was the keynote speaker of the 2022 Milton Handler Lecture. The head of the Antitrust Division of the Department of Justice, Mr. Kanter has been widely expected to take a vigorous enforcement approach. His May 18 speech was an opportunity to signal more explicitly what that might look like. And although he avoided any comment on specific fact patterns, his remarks made clear that busy times are ahead for the antitrust bar.
Under Mr. Kanter’s leadership the touchstone of civil antitrust enforcement will be “protecting competition.” This marks an intentional departure from the “consumer welfare standard” that has predominated since the 1980s. In Mr. Kanter’s view, “consumer welfare is a catchphrase, not a standard.” It “systematically biases antitrust toward underenforcement” by neglecting to acknowledge the breadth of objectives that the Sherman and Clayton Acts were originally intended to pursue. “Senator Sherman himself expressed a goal of protecting not only consumers, but also sellers of necessary inputs, such as farmers.” Mr. Kanter noted that the Supreme Court endorsed this broad conception in the 1958 Northern Pacific case, when it described the Sherman Act as a “comprehensive charter of economic liberty.”
Mr. Kanter argued that in addition to unjustifiably narrowing the scope of antitrust enforcement, the consumer welfare standard is unintuitive and cumbersome to administer. “It cannot be that a business trying to understand the legality of its merger must undertake months of analysis to produce a complex simulation model, or that a court must decide an antitrust case by deciding among dueling consultants’ white papers reporting on simulations.”
Rather, Mr. Kanter believes we must “get back to first principles and focus on the policies that Congress was trying to advance in passing the antitrust laws.” Assessment of the competitive effects of a merger should include “real-world evidence, economics, expertise, and common sense.” As Mr. Kanter put it, if “somebody tells you that the NL East looks competitive this year, you understand what they mean.”
Mr. Kanter took the opportunity to put companies on notice that his team “will remain vigilant and undeterred,” noting that the Department has already sought to block anticompetitive deals in the airline and healthcare sectors. “Companies that test our resolve in these and other areas do so at their own risk and will continue to confront aggressive antitrust enforcement. As one of my predecessors explained, some deals should never leave the boardroom.”
The event marked the latest installment of a distinguished antitrust lecture series that dates back nearly half a century, and it was the first Handler Lecture since the pandemic. Craig Brown, CEO of Bridgeline Solutions (sister company of Lateral Link) and Co-Chair of the NYC Bar’s Handler Lecture Subcommittee identified Mr. Kanter as a potential speaker and met with him to explain the Handler Lecture’s storied history. Mr. Kanter graciously agreed to participate. Craig’s connection to Milton Handler goes back decades, to when Craig was an antitrust & litigation associate with Kaye Scholer and Professor Handler was still a practicing named partner of the firm (Kaye Scholer Fierman Hays & Handler).
Craig joined hosts Zach Sandberg and David Lat on this week’s episode of Movers, Shakers & Rainmakers. They discussed Mr. Kanter’s remarks, as well as Craig’s trajectory from antitrust lawyer to Bridgeline Solutions CEO. Continuing the antitrust theme, the hosts also talked about Covington & Burling’s hiring this week of partner Ryan Quillian, formerly the Deputy Assistant Director of the Technology Enforcement Division at the Federal Trade Commission.