United States: Midterm Congressional Legislative Wrap-Up: Major Issues, Emerging Priorities

Political debates over the future of antitrust policy have become increasingly widespread over the past several months, but the 115th session of Congress will likely conclude without any major antitrust legislation being enacted. Some bills have passed narrowly along party lines in the House of Representatives—only to be tabled in the Senate—while others receive bipartisan support in one chamber, yet lack the votes in the other. But even though Congress failed to enact any meaningful reform during this session, lawmakers in both parties regularly proposed a wide variety of antitrust legislation that could significantly alter several elements of current law and process. Notably, lawmakers in both parties have proposed major—albeit drastically different—reforms in the area of federal merger review. Further, with Democrats currently favored to gain a majority in at least one chamber in the upcoming midterm elections, it is likely that debates over reforming antitrust policy— and especially merger review—will continue to escalate based on the known priorities of the Democratic legislators poised to take over antitrust subcommittee chairmanships.

Republican Priorities: From Merger Review to Class Action Reform. Over the past two years, the Republican-led House has been particularly active in pursuing antitrust legislation. In terms of merger policy, on May 9, 2018, the House passed the Standard Merger and Acquisitions Reviews Through Equal Rules Act of 2018 (H.R. 5645) (SMARTER) by a vote of 230-185. The Act aims to harmonize merger review procedures between the two federal agencies charged with evaluating potential transactions— the DOJ and FTC. Currently, the FTC can challenge a merger using in-house administrative procedures under §13(b) of the Federal Trade Commission Act, while the DOJ can challenge a merger only in federal district court. The SMARTER Act would eliminate the FTC's in-house challenge authority and require the agency to pursue relief exclusively in federal court, greatly curtailing the FTC's ability to challenge mergers it deems harmful to competition. The SMARTER Act would also eliminate the FTC's "public interest" standard for obtaining preliminary injunctive relief, replacing it with the DOJ's equity-balancing test.

The House also pursued major class action reform, narrowly passing (220-201) the Fairness and Class Action Litigation Act of 2017 (H.R. 985) (FCALA) on March 9, 2017. If enacted, FCALA would substantially alter how class action lawsuits— particularly those with antitrust claims—can be litigated. Among other provisions, FCALA would codify ascertainability as a requirement of class certification, require potential class members to establish that they suffered the same type and scope of injury, prohibit law firms from representing the same client in multiple class actions, and stay discovery while any preliminary motions are pending. In effect, the reforms could limit the ability of plaintiffs to bring large, single-class actions, forcing plaintiffs to certify multiple subclasses, while also hampering law firms from utilizing the same named plaintiffs across multiple lawsuits.

Taken together, the two bills could significantly reshape both private antitrust lawsuits and FTC merger review. Given their narrow passage in the House, however, neither bill has received serious attention in the Senate, and it remains to be seen whether the bills can pass in their current form.

Limited Bipartisanship: Narrowing Antitrust Immunities. Not every piece of House-backed antitrust legislation has divided the chamber along party lines. One area where Democrats and Republicans have shown some interest in antitrust bipartisanship is in updating antitrust immunities. For example, during the unsuccessful effort to repeal the Affordable Care Act in 2017, the House overwhelmingly passed (416- 7) the Competitive Health Insurance Reform Act of 2017 (H.R. 372) to amend the McCarran-Ferguson Act in order to remove health insurance companies' immunity for certain forms of anticompetitive conduct under the Sherman and Clayton Acts. The bill died in the Senate, but if health care reform re-emerges in the next session, it is possible that a version of this bill will be included.

Additionally, there is also bipartisan momentum in both chambers to eliminate longstanding antitrust immunity granted by judicial precedent to the Organization of the Petroleum Exporting Countries (OPEC)—a cartel comprised of several major oil-producing countries. Introduced in the House on May 22, 2018, the No Oil Producing and Exporting Cartels Act (H.R. 5904) (NOPEC) would permit the DOJ to sue OPEC for antitrust violations related to the production and sale of petroleum. A similar bill passed in both chambers in 2007, but it was never reconciled due to a veto threat from President Bush. This time around, Congress likely has the support of President Trump. Prior to becoming President, he voiced support for NOPEC in his 2011 book Time to Get Tough, and in September he explicitly condemned OPEC's impact on oil prices during a speech to the United Nations. Consequently, lawmakers from both parties are revisiting the bill. The House version has seven co-sponsors—five Republicans and two Democrats—and the companion Senate bill (S.3214) has four co-sponsors—two from each party. On Aug. 20, 2018, the Senate and House Judiciary Committee Chairmen wrote to Assistant Attorney General Makan Delrahim to request his views on the bill, and while Delrahim has not yet formally responded to the inquiry, in 2008, he wrote an op-ed in support of the 2007 NOPEC bill. Absent a dramatic reversal in the Executive Branch's views, NOPEC's passage could be a rare bipartisan achievement early in the next session.

Outside of NOPEC, it seems unlikely that any of the major antitrust legislation considered during the 115th session will be enacted during the next session, but even so, lawmakers continue to propose a variety of reforms to modernize antitrust enforcement. With the 2018 midterm elections approaching, it is possible that a shift in relevant committee leadership could lead to greater substantive action when Congress returns in January.

A 'Blue Wave' Could Bring New Antitrust Leaders, Priorities to the 116th Congress. It is always possible that the electoral landscape dramatically shifts in the final weeks leading up to election day, but current polling suggests that Democrats will likely win control in at least one congressional chamber. As of late September, FiveThirtyEight projects that Democrats have a roughly 80 percent chance of winning control in the House and a 30 percent chance in the Senate. If either chamber changes hands, congressional antitrust priorities— particularly in terms of merger review—could shift significantly based on new leadership. In the House, David Cicilline (D-R.I.) is in line to take over as Chairman of the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law. Since joining the House in 2011, Rep. Cicilline has been a major advocate of heightening congressional scrutiny of "mega-mergers" in telecom, retail, and entertainment industries by expanding traditional antitrust analysis to review a merger's effects beyond its impact on consumer welfare. As one of three House Democrats to author the party's new "Better Deal" platform to modernize antitrust enforcement, and a founding member of the recently formed Congressional Antitrust Caucus, Rep. Cicilline has repeatedly warned that the United States is experiencing a "monopoly moment" that requires comprehensive antitrust reform to combat what he sees as overwhelming economic concentration among major corporations. As part of his efforts, Rep. Cicilline has co-sponsored the 21st Century Competition Commission Act of 2017 (H.R. 4686), which would create a new government agency charged with evaluating the impact of major mergers and increased market concentration, and the Merger Retrospective Act of 2017 (H.R. 4538), which would require the DOJ and FTC to conduct annual retrospective studies of how recent mergers impact jobs, wages, prices, and local economies. While Rep. Cicilline has been largely critical of several recent multibillion dollar mergers, he has not opposed every recent "mega-merger," even voicing strong support for the proposed $69 billion vertical merger between CVS— based in his home state of Rhode Island—and Aetna. Nevertheless, if he becomes subcommittee chairman, it seems likely that he will push the committee to investigate major transactions more thoroughly going forward.

In the Senate, Amy Klobuchar (D-MN) would likely become Chairwoman of the Senate Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights. Like Rep. Cicilline, Sen. Klobuchar has recently proposed several efforts to strengthen merger review. One of Sen. Klobuchar's most significant proposals is the Consolidation Prevention and Competition Promotion Act of 2017 (S.1812), which would amend §7 of the Clayton Act to lower government enforcers' burden when attempting to block a transaction, from having to show that the prospective merger would substantially lessen competition, to needing show only that it would cause more than a de minimus amount of harm to competition. For mergers that would lead to a significant increase in market concentration or surpass a statutorily defined threshold, the bill would shift the burden away from the government to the merging parties to prove that the deal would not harm competition in order to obtain government approval. Sen. Klobuchar's and Rep. Cicilline's proposals were immediately tabled, but suggest that they will continue to make merger reform a priority in the next session.

Ultimately, even if Democrats recapture majorities in one or both chambers, do not expect that any major antitrust legislation—with the possible exception of NOPEC— to pass given the continuing hyperpartisan legislative atmosphere, presumably slim majorities that would accompany Democratic gains, and the potential for a presidential veto. Even so, if Rep. Cicilline and/or Sen. Klobuchar chair their respective subcommittees in January, companies considering significant mergers should expect that the subcommittees will use the full extent of their oversight capabilities to scrutinize major transactions going forward.

Previously published in New York Law Journal

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.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions