On January 24, Assistant Attorney General of the Antitrust Division Jonathan Kanter delivered remarks to the New York State Bar Association Antitrust Section. In his speech, Kanter expressed serious concerns over the recent increase in the concentration of industries and decrease in competition. Kanter believes that the “only way” to continue promoting competition is by aggressively adapting antitrust law enforcement to reflect today’s market realities.

How? Citing an unprecedented surge in merger notifications received by the department (3,500 in 2021) and the resulting consequence of less competition, Kanter vows to “challenge any merger where the effect ‘may be substantially to lessen competition or to tend to create a monopoly.'” He emphasized the lack of attention given to the second prong “tend[s] to create a monopoly.” In his view, “when the division concludes that a merger is likely to lessen competition, in most situations, we should seek a simple injunction to block the transaction.” For Kanter, the proactive approach of seeking a simple injunction is “the surest way to preserve competition.” The other option of assessing a future remedy for a business to “maintain its competition,” often involving a divestiture (asset sales), is rarely successful. According to Kanter, the latter often does not encapsulate the complexities of “business models and innovative markets.”

Kanter also wants to avoid settling because settlements do “not move the law forward.” He wants to litigate and pursue structural remedies to restore market competition, especially in conduct cases. Kanter comments: “We need litigation that ends in published decisions so that businesses can know what is lawful and what is not.”

Our Take. Kanter’s remarks are a warning to companies. With rising inflation and increased mergers, we expect to see more antitrust enforcement actions from federal and state regulators.