Ex-FTC Chair Sees ‘Greater Inclination’ by DOJ, FTC to Litigate

There’s “clearly a stronger appetite” for antitrust litigation under the current leadership of the FTC and the DOJ’s Antitrust Division, Hogan Lovells partner Edith Ramirez said on her firm’s webinar Wednesday. She chaired the FTC during President Barack Obama’s second term. “We are seeing greater inclination on the part of the agencies to litigate, and I don’t see that changing anytime soon,” she said. “A lot of the cases that we’re seeing the agencies bring are ones that we would have seen in the past, but there are also cases that likely would not have been brought,” said Ramirez. “The upshot is that the review process is taking a lot longer, it’s a lot more burdensome and a lot more uncertain for the parties.” Those parties, she said, “are facing a number of high-stakes strategy decisions today as a matter of course, including whether they will be prepared to litigate if the agency disagrees with their arguments.” On how the FTC and DOJ “are being tested in court,” Ramirez thinks “so far, they have a mixed record.” In DOJ’s November 2021 lawsuit to block Penguin Random House’s buy of Simon & Schuster, “that was a matter in which DOJ did prevail,” said Ramirez. DOJ successfully argued “that the combination of the two publishing companies would lead to diminished competition,” she said. The U.S. District Court for the District of Columbia also agreed with DOJ that the transaction “would increase the likelihood of coordinated conduct among the remaining players,” she said. “I think we’re going to see more coordinated-conduct theories being asserted by the agencies going forward.”