Taking Stock of the Antitrust Modernization Commission Report

This past spring, the Antitrust Modernization Commission issued a 449 page report addressing the state of antitrust law and practice. In general, the report highlighted that the antitrust laws remain effectively positioned to address anticompetitive conduct. Notably, the report rejected calls for new strategies or institutions to address high technology markets. It did, however, highlight a number of recommendations related to the intersection of antitrust and intellectual property law, including ones related to patent law reform and conduct related to standard setting bodies.

In line with its generally approving tone of current antitrust enforcement, the report did not call for any significant reforms of merger review, turning away an array of criticism of current practice. First, some commentators have suggested that the agencies abuse their leverage under the Hart Scott Rodino Act to obtain regulatory oversight or demand relief that they would not otherwise be able to achieve in court. Second, others have complained that the antitrust authorities have allowed mergers to proceed without imposing effective remedies and that the merger remedies process is often a black box. Third, some have suggested that the impact of innovation and potential entry are overly discounted by the current Merger Guidelines and that the authorities should have a greater tolerance of mergers than traditional antitrust metrics would call into question.

This conference will evaluate the judgments of the Antitrust Modernization Commission report, examining its basic conclusion that there are no fundamental flaws in modern antitrust law and practice as well as its various suggestions for reform. To do so, we will bring together some of the Commissioners who evaluated the state of antitrust law, current and former antitrust enforcers, and a number of leading antitrust practitioners. In particular, we will examine the report’s conclusions within three broad headings–Rethinking Merger Review; Antitrust in the New Economy; and the Antitrust/IP Interface.