United States: Antitrust Enforcement Under A Clinton Administration: Status Quo Or Significant Change?

On Monday, October 3, 2016, Hillary Clinton issued a statement on her website titled "Hillary Clinton's Vision for an Economy Where our Businesses, our Workers, and Our Consumers Grow and Prosper Together."

Prior to this statement, there had been some speculation over what a Clinton presidency might bring in terms of antitrust enforcement.

Unlike President Barack Obama, former Secretary Clinton had not issued a clear policy statement on her antitrust position before Monday. She had, however, penned one short op-ed piece for Quartz, and had made some general statements on the campaign trail regarding the problems of industry consolidation. It was unclear from these prior statements whether a Clinton administration would mean any change in the current state of affairs at Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC). The current administration has challenged a higher percentage of mergers than any administration since before Reagan's, but it has not significantly altered the law regarding what mergers are considered actionable.

In her Quartz op-ed, Secretary Clinton stated that "we need to fix [the system]," and decried the concentrated markets in the pharmaceutical, airline and telecommunications industries. But Secretary Clinton gave only two concrete examples of how she would "take on the fight" against "large corporations."

First, Secretary Clinton stated she "will empower the Department of Justice to vigorously investigate proposed health insurance mergers and take action to reign in prescription drug and out-of-pocket costs." With regard to health insurance mergers, the DOJ already is challenging vigorously the Anthem-Cigna and Aetna-Humana mergers, and in general investigates the health care industry more often than any other industry. She also criticized "pay-for-delay" agreements in which pharmaceutical companies enter into settlements with generic drug companies to keep the less-expensive generic option off the market. The FTC already challenges these agreements, and has described them as "anticompetitive deals [that] cost consumers and taxpayers $3.5 billion in higher drug costs every year." Those statements did not indicate a marked policy change from the current administration.

Second, Secretary Clinton said that she would like more staff for the DOJ and FTC. This is a budget issue that would need to pass Congress. Depending on how things shake out in November, it is not altogether impossible, but one hates to rely on anything that requires Congress to take action.

Secretary Clinton's new policy statement, however, does suggest the potential for even more aggressive enforcement than the current administration. The Obama administration has increased merger challenges and used its authority to prevent or restructure deals. A Clinton administration may do more. Secretary Clinton's statement indicates that she is worried that increased consolidation is leading to anticompetitive conduct, and the agencies need heightened vigilance.

Secretary Clinton vows to "[a]gressively enforce and strengthen merger reviews as well as our antitrust laws and guidelines;" specifically, to ensure "that mergers and acquisitions do not excessively concentrate market power . . . through higher prices, reduced choice, and other harms." The statement goes on to say that "large firms abuse their power by excluding potential rivals."

These statements sound more similar to statements made by Senator Elizabeth Warren (D-MA) than Secretary Clinton's prior op-ed or the current administration's policy. Senator Warren said in an antitrust speech in June that she wants the antitrust laws to be used not only to challenge illegal agreements, mergers and other forms of industry consolidation, but to break up companies that already have merged or consolidated. In short, she wants to revive trust-busting. Senator Warren also stated that mergers should be stopped altogether rather than allowed to proceed with conditions or after divestitures.

Although Secretary Clinton did not advocate breaking up companies, she did propose greater emphasis on retrospective review of mergers to examine the impact of mergers "on competition, prices, and other factors," as well as studies "on market concentration and its impact on competition." This type of information gathering is already conducted by the FTC and DOJ, but Secretary Clinton appears to be suggesting that greater resources would be devoted to retrospective studies. At the very least, increased emphasis on information gathering would provide the FTC and DOJ a better understanding of how these transactions impacted competition and could lead to more aggressive future enforcement on the basis of these studies' findings. Greater retrospective review will entail increased post transactional costs for companies engaging in acquisitions, as consolidators would be targets for follow-up information requests. Finally, it is possible that more regular and extensive retrospective merger studies could lead to instances where a previously cleared merger could receive additional scrutiny and result in post-merger conditions or requirements placed on the consolidated entity.

Secretary Clinton also vowed on Monday to "[a]ppoint strong leadership at our antitrust agencies." She will have the opportunity to nominate individuals to fill the two existing Commissioner vacancies as well as a third person to replace current Chairwoman Edith Ramirez whose seven-year term expires in April 2017. Because no more than three FTC Commissioners can be of the same political party and because Commissioners Maureen Ohlhausen and Terrell McSweeny are a Republican and Democrat, respectively, Secretary Clinton will be able to appoint two Democrats and one Republican Commissioner. By filling these vacancies, Secretary Clinton will be able to shape the FTC's future policy and goals, and direct the FTC to challenge consolidation in general.

Secretary Clinton also will be able to shape future antitrust policy through her choice of Attorney General and Assistant Attorney General for the DOJ's Antitrust Division. If the Democrats win enough Senate seats in November to ensure a majority without Senator Warren, then Senator Warren could be one possibility to lead the DOJ and influence antitrust enforcement goals (If Senator Warren were to leave the Senate for a position in a Clinton Administration, Massachusetts Governor Charlie Baker (R) would have the chance to appoint someone to fill her seat until the next election, and presumably he would choose an individual of his own party).

As Senator Warren said in her antitrust speech, "the Obama administration has challenged a higher percentage of mergers than any administration since before Reagan's." We can expect this trend to continue under a Clinton administration. What remains to be seen is whether a Clinton administration will move to break up companies and industries that have already consolidated, prevent more mergers from proceeding, with or without divestitures, or encourage a revision of the Guidelines that will challenge consolidation more broadly. Any of these things would mean a change in the status quo. Those invested in the antitrust world should pay close attention to who Secretary Clinton appoints to head enforcement agencies should she win in November, and be prepared for more comprehensive challenges to industry consolidation and increased retrospective review.

Antitrust Enforcement under a Clinton Administration: Status Quo or Significant Change?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.