Is some continuity in antitrust policy possible under Trump?

During former President Joe Biden’s single term, the Federal Trade Commission took what most legal observers considered an aggressive approach to antitrust law enforcement.

Under Biden, the FTC, led by former commissioner Lina Khan, sued Amazon, opened an investigation into Microsoft and won court rulings that blocked Kroger’s $25 billion acquisition of rival grocery chain Albertsons and the $8.5 billion merger of handbag makers Tapestry and Capri.

With President Donald Trump’s victory in the November election and his dramatic changes so far to several other government agencies, it wouldn’t be a stretch to assume there might be a shift in the FTC’s antitrust enforcement priorities from those emphasized during the Biden Administration.

And following Khan’s resignation after the election, Trump fired the remaining two FTC commissioners in mid-March, a move that, if it survives legal challenges, would radically change the commission’s traditional bipartisan makeup.

But many Indiana attorneys expect there to be a continuity of enforcement in at least some areas, like Big Tech, health care and mergers and acquisitions.

Jason Covert, a partner in Taft, Stettinius & Hollister LLP’s Indianapolis office, said FTC Chair Andrew Ferguson’s public statements since being named to the post show an emphasis on keeping an eye on Big Tech, mergers and roll-up strategies, which are corporate consolidation strategies that occur when a company becomes larger by buying several smaller firms in the same or related business sectors or industries.

Covert, however, said there may be “different targets” for antitrust enforcement in the new Trump administration.

Kendall Millard, co-chair of Barnes & Thornburg’s antitrust and competition law practice and a partner in the firm’s Indianapolis office, echoed Covert’s comments on different enforcement priorities.

Millard said he expects the FTC to, at some point, withdraw its federal rule banning noncompete agreements.

The FTC issued its final rule on noncompete agreements in April 2024, with Khan saying at the time, “Noncompete clauses keep wages low, suppress new ideas, and rob the American economy of dynamism, including from the more than 8,500 new startups that would be created a year once noncompetes are banned.”

On Aug. 20, a district court issued an order stopping the FTC from enforcing the rule. The commission has appealed that decision.

Millard said, during the Biden administration, the FTC had tried to expand worker protections through its rule making process.

As an example, Millard pointed to the agency, in its opposition to the proposed Kroger/Albertsons merger, arguing that the combination of the companies would negatively impact unionized grocery workers’ collective bargaining ability.

“The combined Kroger and Albertsons would have more leverage to impose subpar terms on union grocery workers that slow improvements to wages, worsen benefits, and potentially degrade working conditions,” the FTC wrote in announcing its challenge to the proposed merger.

A U.S. District Court judge in Oregon granted the FTC’s request in December for a preliminary injunction to prevent Kroger from acquiring Albertsons.

Millard said the FTC had also used the Robinson-Patman Act, a law established in 1936 and rarely used in recent years, during the last few months of the Biden presidency to investigate price discrimination.

Trump’s firings

Trump fired the two Democratic FTC members March 18, the Associated Press reported.

Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter said they’d been dismissed illegally and would sue to block Trump’s order. They also said they consider themselves still part of the FTC, though whether they will still have access to their offices and logistical tools like email going forward was unclear.

Removing Bedoya and Slaughter could free up space on the five-member FTC for new commissioners loyal to Trump and his priorities and policies.

The White House confirmed the dismissals. Ferguson, a Republican whom Trump designated as FTC chair upon taking office in January, released a statement on X saying he had no doubts about Trump’s “constitutional authority to remove Commissioners, which is necessary to ensure democratic accountability.”

Max Huffman, vice dean at the Indiana University McKinney School of Law, had spoken to The Indiana Lawyer prior to the announcement of the FTC firings.

Upon hearing news of the dismissals, Huffman said in an email he would probably revise his suggestion that “the FTC might be expected to proceed along something resembling normalcy.”

“This level of one-party oversight /leadership is contrary to the agency’s founding structure and should be expected to produce erratic and unpredictable outcomes. Thus, there is no realistic possibility of predicting the next 3.5 years,” Huffman said.

The FTC is a regulator created by Congress that enforces consumer protection measures and antitrust legislation. It is typically composed of three members of the president’s party and two from the opposing party.

Commissioners are appointed by the president and confirmed by the Senate. They serve seven-year terms that are staggered to prevent multiple vacancies at once.

Bedoya, who was appointed in 2021 by President Joe Biden and confirmed in May 2022, posted on X and blasted Trump, saying “The FTC is an independent agency founded 111 years ago to fight fraudsters and monopolists” but now “the president wants the FTC to be a lapdog for his golfing buddies.”

Daniel Spungen, senior counsel at Amundsen Davis’ Indianapolis office, said he wouldn’t be surprised if there’s legal challenges to the FTC firings.

Spungen said the commission’s political makeup has typically been pretty balanced.

Will antitrust enforcement change with new administration?

During the Biden Administration, FTC enforcement actions increased with a stricter scrutiny on mergers.

Spungen said he thought enforcement actions now would become more deal-dependent, with no particular industry or sector being more singled out for heavier FTC scrutiny.

The Amundsen Davis attorney noted that the FTC’s and DOJ’s joint 2023 Merger Guidelines will still be used to analyze potential mergers.

“But I think their interpretations of those guidelines could change,” Spungen said.

In a Feb. 18 memo to FTC staff, Ferguson clarified that the 2023 guidelines would be in effect and serve as the framework for the agency’s merger-review analysis.

“By and large, the 2023 Merger Guidelines are a restatement of prior iterations of the guidelines, and a reflection of what can be found in case law. That is good reason to retain them. That is not to say that the 2023 Merger Guidelines are perfect. No guidelines are perfect. If experience teaches that revisions are appropriate, then the agencies can consider revisions as they have done in the past,” Ferguson wrote.

Millard said there might be less antitrust enforcement actions, but he expects BigTech federal investigations will continue, as well as scrutiny of cases involving questions about bid rigging, price fixing and market allocation.

Anthony Aaron, partner with Ice Miller, said that in addition to retaining the 2023 merger guidelines, the FTC is also keeping in place rules governing the Hart Scott Rodino Act merger notification requirements.

According to the FTC under the HSR Act, parties to certain large mergers and acquisitions must file premerger notification and wait for government review. The parties may not close their deal until the waiting period outlined in the act has passed, or the government has granted early termination of the waiting period.

Like Millard, Aaron said Big Tech may be a focus of antitrust enforcement agencies with the new administration.

“I don’t think we’ll see dramatic change from an overall perspective,” Aaron said.

Huffman noted that antitrust oversight geared toward Big Tech also had bipartisan support in the U.S. Senate, with Republican Sen. Josh Hawley, R-Missouri, and Democratic Sens. Elizabeth Warren, D-Massachusetts, and Amy Klochubar, D-Minnesota, among those advocating for reforms.•