Recent and Future Changes in Antitrust Law

The principal recent change in antitrust law has been its globalization. Ten years ago 98 percent of merger filings, merger review and antitrust law matters were U.S.-based only; as a practical matter, except for the very largest global transactions, the United States was the only jurisdiction that mattered, even for transnational transactions. Today, we often spend as much time with antitrust issues developed outside the United States as we do with those in the United States, particularly when the European Union is involved.

At last count there were more than 90 jurisdictions and sovereignties with some form of regulatory antitrust principles in place with additions each year. Although 40 to 50 or so of these locales are neither enforcement-oriented nor have well developed antitrust laws (and the markets of the nations themselves may not be very significant on a global basis), many of todays mergers and related work will require antitrust review in 20 or more jurisdictions. This brings a whole new complexity to the antitrust practice. It has been a phenomenon driven largely by the European Union and much of its recent merger work. And in other areas such as cartel activity the U.S. government and the European Commission are challenging global cartels developed, maintained and located off-shore.

Today U.S. grand juries reach into conduct that occurred in Switzerland, in Argentina or in Singapore, and as a result we find ourselves having to take a much more global view of what we do. What is common in these jurisdictions is an enhanced emphasis on antitrust economic principles.

Economics has become a much larger focus because it is what all antitrust laws have in common. There are variances and intricacies in every set of laws, but what they do have in common, in a genuine antitrust regime , is the basic industrial organization economic principles that are applicable across the world.

There has been a great deal of debate on where antitrust law is heading globally. The United States has weighed in a few times, probably more often opposing the globalization of antitrust law, for example under the World Trade Organization, and this opposition has resulted in much debate over the character of antitrust globalization. It appears to be principally heading toward an increased emphasis globally in stopping cartel activity, largely price-fixing , group boycotts and market allocation conduct.

We will continue to experience an active governmental interest in the review of horizontal mergers, which are mergers among competitors , and we will continue to see occasional but serious enforcement against abuses of dominant position, such as the Microsoft-style investigations and similar activities. These three areas, cartel-enforcement, merger review and a few monopoly cases, will fuel the growth of antitrust worldwide, and antitrust enforcement likely will be focused upon whatever industry is hot at the time.

There was a lot of discussion about e-commerce two, three, four years ago in the antitrust bar, and today we spend much less time with it. That does not mean the principles are not applicable there; it is simply that the business activity has moved on, and antitrust moves with it.

The increased interplay of intellectual property and antitrust law has changed how we approach antitrust law. I think there has been an emergence of interest in recent years; it is an active legal specialty in the United States and around the world. Intellectual property protection is a priority of many, many companies; they depend on it for their value and their livelihood. It used to be that antitrust, at least in the United States, was hostile to and would routinely trump patent law, but that has changed significantly. The interplay of those two is still hand-in-hand, and we work closely with intellectual property lawyers on matters that cross our two areas of practice.

Antitrust law will continue to be important when addressing licensing, strategic joint ventures and special partnering arrangements the sorts of arrangements that are less than mergers and acquisitions, but more than purchase and sale agreements between companies. Many such undertakings are driven by technology sharing, patent licensing, and trade secret arrangements. In Europe new block exemptions must be considered as well as changes in antitrust enforcement in the United States in this field, and these intellectual property law developments are changing what we do as antitrust lawyers.

Finally, I think another principal change we will see in the practice of antitrust law is that the practice will tend to be a focus at fewer and fewer firms but with larger and larger competition law practices, all driven by increased specialization and concentration, which is probably the trend of the practice of law more generally .

I do foresee antitrust as a robust practice for a number of years to come. It is ingrained as an area of law the understanding of which is essential to any company that wants to be successful. Over the next ten to fifteen years, we will see an increasingly active government antitrust enforcement effort directed at cartel conduct, and it will use nontraditional law enforcement and investigatory techniques. We will see more sophisticated conspiracy investigations than we have historically, and we will probably see it trending toward increased cooperation internationally among enforcement agencies.

The real challenges for the antitrust lawyer over the next 10 to 20 years will be to remain on top of the rapid changes in legal and economic thinking on antitrust law, to continue to develop and refine risk analysis for clients, to approximate a science and to ensure that our own resources are properly allocated to respond to antitrust demands on a global platform. Antitrust lawyers will need to know their clients businesses at their fingertips to be able to respond more quickly, more immediately with judgments clients will trust and follow.

There is also some room for true reforms in the antitrust practice. Most immediately, simplifying and staging the antitrust process with the government or in private litigation would result in much sharper, much more coordinated challenges to various business practices. Both merger and acquisition antitrust matters and private litigation need to be streamlined in some effective way without losing the essence of the analysis. We produce massive amounts of underlying documentary material in discovery or a merger review that is rarely if ever dealt with in most antitrust cases. What is also out of control is the process of dispute resolution through the courts when multiple forums vie for different parts of an antitrust matter, until it becomes a procedural morass of conflicting challenges, with claims and court rulings inconsistently layered one upon another on the same antitrust point. Much has been written on the Microsoft case in this respect. But anything that would simplify the factfinding process and more quickly separate the real antitrust cases from the unsupported cases would be welcomed by both the business community and the courts and would be a genuine positive change for the process of practicing antitrust law.

Michael Sennett, a member of Bell, Boyd & Lloyd LLC, chairs the firm's Antitrust and Trade Regulation Department and serves on its Management and Executive Committees. His practice is concentrated in antitrust and trade regulation law with an emphasis on the antitrust aspects of mergers and acquisitions, international transactions and joint ventures and matters before regulatory and antitrust enforcement agencies as well as in the courts and before grand juries. He also provides counsel on pricing, distribution, ecommerce, advertising, marketing, technology licensing, patent-antitrust and related trade regulation matters and regularly handles a broad range of antitrust and business litigation in courts throughout the United States.

Mr. Sennett serves as antitrust and trade regulation counsel to a number of multinational companies, investment banking firms, trade and professional associations. He is admitted to practice before the U.S. District Courts for the Northern District of Illinois (where he is a member of the Trial Bar) and the U.S. Courts of Appeals for the Second, Fifth, Seventh, Eighth, Ninth, District of Columbia and Federal Circuits and the United States Supreme Court.

Mr. Sennett serves as an adjunct law professor at Loyola University Chicago, where he teaches international antitrust law, and is a member of the Board of Advisors of the Institute for Consumer Antitrust Law Studies.

He received his A.B. with high honors from Quincy College and an M.A. from Northwestern University. He received his J.D. cum laude from Loyola University Chicago School of Law, where he served as Executive Editor of the Loyola Law Journal.