Changes and Trends

The most significant change in the antitrust laws today is probably the growing importance of economic analysis. An outsider might think, "Ofcourse economic analysis is important, because it's all about economics," but the antitrust laws until the late '70s reflected a set of populist principles that didn't apply a lot of detailed economic analysis. The importance of economics in antitrust has grown steadily since that time and has really become critical to a great deal of antitrust jurisprudence. In the end, if you are not thinking hard about the economic principles involved, you are not really looking at your case properly.

Another major change is the globalization of antitrust. Today, almost every country in the world has an antitrust law, including countries that have only recently begun to adopt market economies. In many locations, antitrust regulation is as significant as in the United States. When you are involved in transactions involving major companies that operate beyond the borders of the United States, then you always have to worry about not one set of laws but often many sets of laws.

To the extent that there have been differences in the application of antitrust or competition laws, those differences are narrowing. Not very long ago there was a vigorous discussion about the differences between European competition laws and U.S. laws, and I think we are already seeing in reaction to that controversy that the enforcement philosophy in Europe is becoming more similar to that in the U.S. I think we will probably end up with a set of antitrust laws that at least in the developed countries will be fairly similar around the world.

One thing that may or may not happen, though we are headed slowly in that direction, is that as economics becomes more sophisticated and as more empirical work is done, all the premises of the antitrust laws will be examined. For example, one basic premise , under the antitrust law, is that higher market shares result in markets being less efficient and prices being higher. We may find over time that even that fairly basic presumption is wrong in some industries. That kind of issue is being looked at, and hopefully it will be looked at more over time. Antitrust is nothing if it is not based on facts that we learn about how markets really work. It is important that the antitrust laws keep evolving in light of what we know.

David Ettinger is a chair of Honigman Miller Schwartz and Cohn LLPs Antitrust and Trade Regulation Department. A 1976 graduate of the University of Michigan Law School with graduate level training in antitrust economics, Mr. Ettinger has spearheaded the firms antitrust practice for twenty years .

Mr. Ettinger˜s activities include the litigation of major antitrust cases, including both private cases and cases brought by federal and state antitrust agencies, as well as advice and counseling on antitrust and trade regulation issues for clients in a wide variety of industries.

Mr. Ettinger has served as lead antitrust counsel in a number of antitrust cases of major national importance. These include Hassan v. Independent Practice Associates (the leading case on HMO and network antitrust liability), United States v. Mercy Health Services (successful defense of a hospital merger against a Justice Department challenge), Compuware v. IBM, (challenge to monopolization of mainframe software products) and the successful defense of a number of antitrust class actions. Mr. Ettinger was one of the pioneers in developing defenses to indirect purchaser class actions brought on behalf of consumers.