Antitrust Law Daily Enforcers’ roundtable addresses business collaboration and anticompetitive, unfair conduct during COVID-19
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Friday, April 24, 2020

Enforcers’ roundtable addresses business collaboration and anticompetitive, unfair conduct during COVID-19

By Thomas G. Wolfe, J.D.

Federal, state, and foreign antitrust enforcers discussed competition, consumer protection, and merger control during COVID-19 at the virtual "Enforcers Roundtable" discussion at the ABA Section of Antitrust Law Spring Meeting.

In a virtual Enforcers Roundtable discussion held April 24 for the ongoing 68th annual American Bar Association Section of Antitrust Law Spring Meeting, key federal, state, and foreign antitrust enforcement leaders spoke about the delicate balance that they are striving to maintain to facilitate the collaboration of businesses to effectively combat the global coronavirus pandemic to ensure the health, safety, and financial welfare of all citizens on one hand while seeking to thwart collusively anticompetitive or unfair conduct on the other hand.

On the topic of COVID-19, Makan Delrahim, Assistant Attorney General in charge of the Department of Justice Antitrust Division, underscored the recent business review letters that the agency issued on an expedited basis (taking several days) to provide pandemic relief, compared to the standard process typically taking several months. The first letter was sent to medical supply distributors, and the second letter was addressed to AmerisourceBergen Corporation.

At the same time, Delrahim asserted that the Division would "not tolerate" any business conduct involving the hoarding of essential medical supplies and protective gear or the making of false claims to deceive consumers. Echoing that approach, FTC Chairman Joe Simons pointed out that, during the COVID-19 pandemic, the Commission has provided businesses with a number of advisories to help guide companies but has also issued many warning letters to companies who have made unsubstantiated or exploitive claims about products associated with the pandemic. Along those lines, Simons indicated that the FTC has addressed an increasing number of robocalls and scam calls that play upon the fears and anxieties of consumers.

State enforcement. Sarah Oxenham Allen, Senior Assistant Attorney General and Antitrust Unit Manager of the Office of the Attorney General in Richmond, Virginia, emphasized that the National Association of Attorneys General Multistate Antitrust Task Force is currently addressing the problem of price gouging by some companies and businesses during the COVID-19 pandemic. She also stressed the importance of federal and state agencies coordinating their efforts. "Consumers are better off when federal and state agencies work together," she said.

International enforcement. To counter the heath related and economic effects of the coronavirus, the European Commission (EC) has approved "$1.8 trillion euros in state aid" to 26 member states to "weather the storm," EC Commissioner Margrethe Vestager stated. At the same time, to maintain some level of competition and accountability in the system during the global emergency, lenders still have "skin in the game" for loans exceeding a certain level. Vestager expressed the EC’s concern about trying to allow the collaboration of businesses to ensure the speedy development or delivery of medicines, potential vaccines, face masks, ventilators, protective equipment, and so forth but also being aware of preventing, or taking action against, unlawful collusion. She also remarked that new rules on business recapitalization would be forthcoming.

Canadian Competition Bureau Commissioner Matthew Boswell also talked about the Bureau’s maximizing consumer protection during the pandemic by sending warning letters to businesses to address false or unsubstantiated claims about masks, air purifiers, and the like, while simultaneously issuing guidance to companies to "remove the chill" of business cooperation and collaboration to assist governmental pandemic relief. In keeping with the theme of balancing agency approaches, Boswell communicated that the Bureau would be mindful of any unlawful cartel formations "under the cover" of such cooperation and collaboration. Boswell also stressed the importance of the agency’s work with the FTC in the enforcement arena, stating that he believes that relationship has only "grown stronger" during COVID-19.

Acquisitions, mergers. In connection with the pre-merger process, FTC Chairman Simons commented that the Commission’s new emphasis on electronic processing of merger related documentation, and its corresponding deemphasis on print documentation, is a "direct result" of the recent, practical considerations surrounding the coronavirus pandemic.

Later during the virtual roundtable discussion, Simons spoke about the FTC’s initiative to update its Vertical Merger Guidelines, particularly in light of the AT&T-Time Warner antitrust case. According to Simon, after the AT&T-Time Warnerdecision, some people inaccurately perceived the FTC’s future need to enforce vertical mergers as opposed to horizontal mergers. Simon asserted that he believed in "rigorous enforcement" in the area of vertical mergers when he first took the helm as the FTC Chairman and still does now.

Bid rigging. Delrahim briefly talked about the "incredible success" of the Antitrust Division’s "strike force," created in 2019, to fight unlawful bid rigging and prevent improper government procurements. According to Delrahim, the task force’s efforts not only have resulted in more than 100 grand-jury cases across the nation, the Justice Department, FBI, and state and local officials have worked with, and learned from, the FTC in this regard.

The roundtable discussion was moderated by Brian R. Henry, Vice President & Senior Managing Counsel at the Coca-Cola Company, and by Adam J. Biegel of Alston & Bird LLP.

Attorneys: Brian R. Henry, Coca-Cola Co. Adam J. Biegel (Alston & Bird LLP).

Companies: AmerisourceBergen Corp.; AT&T, Inc.; Time Warner Inc.

MainStory: TopStory AcquisitionsMergers Antitrust AntitrustDivisionNews Covid19 FederalTradeCommissionNews GCNNews

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