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US: The antitrust record of SCOTUS nominee Brett Kavanaugh

By  |  July 22, 2018

On July 9, 2018, President Trump announced the nomination of D.C. Circuit Judge Brett Kavanaugh to fill Anthony Kennedy’s seat on the US Supreme Court, in light of Justice Kennedy’s retirement effective July 31, 2018. Mondaq wrote a review of Judge Kavanaugh’s approach to antitrust law as reflected in his opinions.

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    Since Judge Kavanaugh joined the D.C. Circuit in 2006, he has weighed in on two significant mergers and a number of other antitrust issues. Judge Kavanaugh has been skeptical of government efforts to block mergers, dissenting from the majority in United States v. Anthem, Inc. and FTC v. Whole Foods Market on efficiencies and market definition grounds.

    In United States v. Anthem, Inc., Judge Kavanaugh dissented from the majority in which the court affirmed the district court’s injunction preventing the proposed US$54 billion merger of two health insurance companies, Anthem and Cigna. The majority rejected Anthem’s argument that efficiencies created by the merger would outweigh any anti-competitive effect. The majority opinion also questioned the proper weight given to efficiencies in merger analysis.

    Judge Kavanaugh also dissented from the DC Circuit’s opinion in the FTC’s 2007 challenge to the Whole Foods/Wild Oats merger. The FTC sought to block Whole Foods’ acquisition of rival organic grocery chain Wild Oats, and the district court denied the FTC’s motion for a preliminary injunction. In a 2-1 decision, the D.C. Circuit reversed the district court, but Judge Kavanaugh agreed with the lower court ruling. In particular, Judge Kavanaugh did not think that the FTC had put forward sufficient evidence that organic supermarkets were a separate market from regular supermarkets.

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