Legal market overview in United States
Antitrust practitioners in the USA are in marked disagreement about the impact of the Trump administration’s first two years. Some describe a politically motivated regulatory landscape in which the Department of Justice and Federal Trade Commission are being used as weapons in the President’s ‘trade wars’, while others totally reject this suggestion, noting the pride these agencies take in their independence. Where the market is in agreement is on the significance of the DOJ’s challenge to the AT&T/Time Warner combination – the first vertical merger challenge in 40 years – which most agree illustrates the government’s commitment to refocus attention on the US, after years of involvement in international cartel investigations in the auto parts and shipping industries, among others.
On the domestic front, firms are overseeing a number of investigations into alleged collusion between the major US airlines, packaged seafood producers and medical equipment manufacturers.
While traditional antitrust areas are still providing a steady stream of work – especially healthcare, telecoms and pharmaceuticals – firms are increasingly active in novel areas such as Big Data, data privacy, search engine terms, two-sided markets and intellectual property. Despite a lack of concrete legislative changes, the legal world is already debating the implications of these new elements and the benefits of redefining antitrust as not simply the protection of consumer welfare through a monitoring of price and output but also of quality and innovation.
On the civil litigation and class action front, defendant- and plaintiff-side firms are continuing to represent individuals and institutions in litigation arising from alleged violations in the financial services sector, including foreign exchange benchmark and ISDAFIX manipulation. Particularly notable in the past year is the continuing trend of defendants defeating classes at the certification stage and plaintiffs opting out of class actions to bring individual claims instead. Furthermore, firms reported a noticeable proliferation of competitor-on-competitor claims in private litigation instead of bringing their cases in front of the regulatory authorities.
Another trend for 2018 was the multiplication of litigation arising from ‘no-poach agreements’ – agreements between competitors not to steal each other’s employees in order to suppress wages and innovation. This generated a number of high-profile cases in the technology and healthcare sectors, among others.
Richard Parker’s move to Gibson, Dunn & Crutcher LLP and Paul Denis’s retirement from Dechert LLP were noted as particularly significant in a market animated by a healthy ‘give and take’ relationship with the DOJ and FTC. Firms such as Freshfields Bruckhaus Deringer LLP, Williams & Connolly LLP and Baker Botts L.L.P. experienced strong growth within their teams.