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Davis Polk Discusses Biden’s Executive Order on Competition, One Year Later

 |  September 2, 2022

By: Sheila R. Adams, Cody Donald, Benjamin M. Miller, Suzanne Munck af Rosenschold and Nathan Kiratzis (CLS Blue Sky Blog)

Since President Biden issued his July 2021 Executive Order on Competition, the antitrust agencies have made broad policy statements promising more aggressive enforcement and have initiated a number of high-profile enforcement actions.  Rather than establishing a record of success, the primary effect has been to create uncertainty, as the agencies struggle with institutional constraints and have yet to achieve groundbreaking victories in court.  Still, the FTC and DOJ do not appear deterred.

Background on President Biden’s Executive Order on Promoting Competition in the American Economy

On July 9, 2021, President Biden issued a sweeping proclamation on competition in the American economy, asserting that there has been too much consolidation across many different economic sectors and that this consolidation has harmed workers, farmers, small businesses, startups, and consumers, and has led to vast racial, income, and wealth inequalities. This Executive Order affirmed that it is a central goal of the Biden Administration to ensure that antitrust laws in the U.S. are strongly enforced.  The Executive Order highlighted several particular sectors of concern (namely agriculture, information technology, healthcare and prescription drugs, telecommunications, and labor, including a focus on non-compete provisions that impact workers), but the call for stronger antitrust enforcement was economy-wide.

This Update focuses on the Federal Trade Commission’s (“FTC”) and the Department of Justice Antitrust Division’s (“DOJ”) antitrust enforcement activity over the last year under this Executive Order’s direction…