2024 Antitrust Update: Navigating the Evolving Landscape

Antitrust in 2024 was marked by evolving policy developments, vigorous enforcement, and eye-catching court decisions.

In the U.S., an aggressive enforcement approach lead to unpredictability and lengthy merger review process across sectors. In the EU, enforcement of the Digital Markets Act (DMA) intensified scrutiny on digital platforms, while a landmark ruling in the Illumina/GRAIL matter clarified the scope of the EU Commission’s merger jurisdiction. In the UK, the Competition and Markets Authority (CMA) cleared the Vodafone/Three merger with behavioral remedies, signaling a significant departure from its historic practice to require structural remedies. 2025 will see new antitrust leadership on both sides of the Atlantic with an expectation that the U.S. will largely return to a more traditional approach on antitrust under the Trump Administration and that Europe will continue to enforce digital rules and bring cases related to AI with a focus on promoting growth in clean tech and AI sectors.

U.S. Antitrust Developments

The U.S. antitrust landscape is likely to experience significant shifts in 2025 due to the change from the Biden to the Trump Administration and to prior changes implemented by the Biden Administration taking effect.

Overall Enforcement Approach

The Biden Administration swung antitrust policy away from a 40-year bipartisan consensus toward a “progressive” approach that was overtly hostile to mergers in general and that viewed previous antitrust enforcement from both parties had been too “lax.” With some exceptions related to companies perceived as hostile to conservative priorities—for example, Big Tech platforms accused of conservative censorship—the Trump Administration should swing back toward an antitrust policy that more closely adheres to past practices and antitrust economics.

As a result, the Trump Administration is likely to bring increased predictability to antitrust enforcement with a greater focus on bringing traditional cases rather than trying to stretch the law and the facts at least in most areas. The Trump Administration could also reduce the burden of investigations by moving away from procedures used by Biden enforcers to increase costs without changing substantive outcomes. Additionally, Trump enforcers are not likely to vilify private equity or continue the Biden Administration’s hostility toward using consent decrees to resolve antitrust cases when doing so will protect competition.

That said, the Trump Administration will not necessarily lead to less enforcement overall. Notwithstanding the rhetoric from Biden Administration appointees and credulous press coverage echoing their talking points, in terms of objectively measurements of enforcement, such as the number of enforcement actions brought and the percentage of HSR-reported transactions receiving scrutiny, the first Trump Administration was at least as aggressive, if not more so, than the Biden Administration.

The Trump Administration is likely to focus on traditional horizontal merger cases. Enforcement actions in these cases could increase both because the Trump Administration will likely use fewer resources on other types of cases and because Trump enforcers may be more willing to use consent decrees to settle these cases. The Biden Administration largely abandoned the use of consent decrees in settlements, leading them to lose some cases in court that could have been settled and to other mergers going through without action. 

But the Trump Administration is less likely to pursue “edge” theories in merger cases, including for example aggressive vertical theories, conglomerate effects theories such as cases based on bundling, or potential competition cases. The Trump Administration is also less likely to target specific individuals in merger cases, while the Biden Administration in a questionable use of antitrust law forced some merging companies to agree to bar individuals from serving as officers or directors of merged companies as a condition to approving the merger based on alleged antitrust concerns with those individuals’ prior conduct.

The Trump Administration is also less likely to pursue controversial initiatives such as the FTC’s attempt to resurrect the Robinson-Patman Act’s limitations on price discrimination, which lack a sound basis in antitrust economics and prior to the Biden Administration were dead-letter for decades.

In addition, the Trump Administration is less likely than the Biden Administration to aggressively use antitrust laws to regulate broad swathes of the economy as opposed to engaging in case-by-case adjudication. In particular, the Biden FTC sought to promulgate rules that banned non-competes in employment contexts. The courts have blocked these rules from going into effect, and the Trump Administration will likely end this rulemaking. As another example, the Biden Administration suggested antitrust law has a significant role to play in regulation of artificial intelligence, while the Trump Administration likely will take a less interventionist approach and allow the competition to occur in the market. For further discussion, see Non-Competes: One Step Forward and Two Steps Back.

To be sure, the Trump Administration is likely to continue some of the Biden Administration’s initiatives. In particular, the “Big Tech” cases will likely continue. President Trump has said as much explicitly, and Vice President Elect JD Vance and prospective appointees have made similar statements. Indeed, several currently pending cases against Big Tech companies were initiated under the first Trump Administration, not the Biden Administration, including the Google case that is now in the remedy phase and the FTC’s challenge to Meta’s acquisitions of Instagram and WhatsApp. The Trump Administration could also add a new flavor to the Big Tech cases by investigating alleged coordination among Big Tech firms to censor “disinformation” and to de-platform of conservatives and other unpopular voices.

This increasing politicization of antitrust could also manifest in the Trump Administration using the antitrust laws against coordinated action on social goals such as “green” initiatives or DEI. Congressional Republicans have for several years been alleging that companies violated the antitrust laws by agreeing, for example, on net zero goals, and Trump’s prospective appointee as FTC Chair has specifically called out these issues as ones that the FTC should pursue. Thus, while the Biden Administration sought to use the antitrust laws to advance its political goals—e.g., by attacking private equity firms—the Trump Administration might do the same in a different direction. That represents a worrying trend where antitrust priorities are dictated by political goals that swing from administration to administration rather than by more objective values such as protecting free market competition and increasing consumer welfare.

Leadership Changes at FTC and DOJ

The leadership at the FTC and DOJ Antitrust Division will change in the Trump Administration.

At the FTC, President Trump has announced that he will designate Andrew Ferguson, currently one of two Republican Commissioners, as FTC Chair. Trump can make that designation immediately. In a number of dissenting statements while Commissioner and in lobbying for the position as Chair, Ferguson has made clear that he is opposed to the FTC’s most aggressive theories and abuses of process, while also making clear that he will be a Trump loyalist who supports, for example, action against Big Tech for censorship and de-platforming. Once appointed, Ferguson will name new heads of the Bureau of Competition and Bureau of Economics to run the day-to-day antitrust-related operations of the FTC. Trump will also appoint a replacement for current Chair Lina Khan, likely Mark Meador, an antitrust lawyer who recently served as counsel on antitrust policy to the Senate Judiciary Committee. Whether the changes in leadership will help to restore FTC staff morale, which fell precipitously under Khan from the high levels under the prior Trump Administration, is unclear.

At the DOJ Antitrust Division, Assistant Attorney General Jonathan Kanter resigned in December 2024. President Trump has announced that he will appoint Gail Slater as the new Assistant Attorney General, although Senate confirmation will take time. Slater was most recently economic advisor to Vice President-Elect JD Vance and previously worked in Trump Administration on the National Economic Council, in the private sector at Fox and Roku, and at the FTC, including as a staffer to Democratic FTC Commissioner Julie Brill. In announcing the nomination, President Trump emphasized that the Antitrust Division would continue to pursue cases against “Big Tech.” Apart from that focus on Big Tech, Slater is likely to adopt a more traditional approach to antitrust than Kanter. In practice, the transition to new leadership at DOJ Antitrust is likely to occur prior to Slater’s confirmation: traditionally, a senior career DOJ official will temporarily run the Antitrust Division and then a new Principal Deputy Assistant Attorney General, a political position that does not require Senate approval, is installed to serve as Acting AAG.  

HSR Changes, Merger Guidelines, and Other Guidelines

The Biden Administration adopted revised Hart-Scott-Rodino (HSR) rules for pre-merger filings. These rules will impose significantly more burden on HSR filers without much justification. The two Republican Commissioners voted in favor of these rules, seemingly as a compromise so that the three Democratic Commissioners would drop the most extreme parts of their original proposal. The new rules are now embedded as formal federal regulations and scheduled to go into effect on February 10. The rules cannot be withdrawn administratively without a new rulemaking process, which would likely take at least a year, although there is some chance that Congress could strike them down under the Congressional Review Act. Regardless, the Trump Administration could adopt a more reasonable and practical approach to implementing the new rules than what would have been likely under the Biden Administration, potentially lessening the additional burden.

The Biden Administration also withdrew the long-standing 2010 merger guidelines and in December 2023 issued a new set of merger guidelines that largely ignored recent case law and antitrust economics. The Trump Administration could withdraw these guidelines or significantly revise them, and could potentially return to an approach in practice more like the 2010 approach.

The Biden Administration also withdrew a number of other long-standing guidelines, including about competitor collaborations and information sharing, yet did not replace them with anything new. These guidelines summarized the law in a neutral way and helped provide guidance to businesses about what the antitrust laws require. Their withdrawal increases uncertainty for business, and the Trump Administration could potentially develop new guidelines to provide better guidance to business.

Conclusion

The Biden Administration attempted to implement a major shift in the U.S. approach to antitrust. The anticipated return to a more traditional approach under the Trump Administration hopefully will lead to more reasonable enforcement for the next four years in most areas. However, the increased politicization of antitrust by the Biden Administration could also continue under the Trump Administration, just with different targets, which is a worrying development for antitrust enforcement going forward.

Europe and ROW Antitrust Developments

In 2024, Europe and the ROW saw increasing scrutiny of digital platforms via new digital regulation; a landmark ruling that clarified the EU’s merger jurisdiction; a stepchange in how the UK approaches behavioral remedies in mergers; and increasing scrutiny of AI partnerships. In 2025, we expect the new EU Commission to continue to enforce digital rules, to adapt its approach to below-threshold mergers and to bring cases in relation to AI. In a leadership shift, Teresa Ribera will succeed Margrethe Vestager, as EU Competition Commissioner, and will also take up the role of Executive Vice-President for a Clean, Just and Competitive Transition. Ribera’s portfolio echoes the recent Draghi report[1] on European competitiveness, and her broad aim will be to “unlock investment, create lead markets for clean tech and put in place conditions for companies to grow and compete.”  

Digital Regulation Comes Into Force in the EU, and Is Passed in Japan and the UK

In 2024, the obligations under the EU’s DMA, prescribing a series of “dos and don’ts” for the largest tech-companies or gatekeepers, became effective. So far, seven companies have been designated as gatekeepers: Alphabet, Amazon, Apple, Booking.com, ByteDance, Meta and Microsoft. 

The EU Commission has been actively looking to enforce the new rules, launching investigations into Alphabet, Apple and Meta, purporting to address issues such as self-preferencing in ranking, app distribution on mobile OSs and the right way to display user choice screens. The Commission issued preliminary findings against Apple in relation to its anti-steering policies in the App Store,[2] and to enforce interoperability obligations between iOS/iPadOS and connected devices.[3]   

Across the English Channel, the UK adopted similar legislation to the DMA with its own Digital Markets, Competition, and Consumer Act. The UK approach also seeks to impose specific obligations on a handful of digital platforms (which it calls firms with “strategic market status” or SMS), but seeks to take a more flexible approach where the UK agency will devise codes of conduct tailored to specific firm activities, and to explicitly consider consumer benefits in all aspects of its enforcement. In 2025, the new regime will come into force, with the first SMS firms being designated and codes of conduct imposed. The open question for firms and businesses is whether the UK will mostly seek to mimic the enforcement in the EU under the DMA or will try to forge its own path.

Beyond the EU and the UK, 2024 saw a step up in proposals for regulation of digital platforms. In Japan, the Smartphones Act was adopted, which imposes similar obligations to the DMA but focused on mobile platforms. Platform legislation was also proposed in Australia, India and Turkey. 

In 2025, many of these regimes will come into force and tech firms and businesses will need to be cognizant of the “similar but different” rules that apply in each jurisdiction. Our regularly-updated Digital Markets Regulation Handbook, available here, can help firms navigate the evolving landscape.  

Illumina/GRAIL: ECJ Rules European Commission Lacks Jurisdiction to Review Merger Falling Below EU and National Merger Thresholds

On September 3, 2024, the Court of Justice delivered a landmark judgment in Illumina/GRAIL, by ruling in favor of Illumina in its challenge to the EC’s unprecedented assertion of jurisdiction over a transaction that met no notification thresholds at either EU or Member State level.[4] Cleary Gottlieb acted for Illumina in the case.  

In a nutshell, the judgment finds that the EU’s policy of seeking to review non-reportable transactions based on a re-interpretation of Article 22 of the EU Merger Regulation is unlawful. A Member State with domestic merger control rules cannot seek an Article 22 referral if the transaction does not fall within its national merger control rules.

The judgment has significant implications for companies because it limits the main direct avenue the EC intended to use to scrutinize concentrations falling below both EU and national merger control thresholds. Unless a transaction is reviewable based on national merger control rules, an EU Member State will no longer be able to request that a case be referred to the EC.

In 2025, the Commission will need to assess how to respond to the judgment. In the short term, the Commission may consider pivoting to applying abuse of dominance rules (as in the recent Towercast case[5]), although that is limited to acquirers that hold a dominant market position. In parallel, Member States may continue to take action to bring more mergers within the purview of their national merger control rules, which the Commission may in turn then try to review via Article 22. However, in line with the ECJ judgement, if the Commission wants to review more transactions at the EU level, it will have to seek a revision of the EU Merger Regulation’s notification thresholds.  

The UK Signals a Shift in Approach Behavioral Remedies in the Vodafone/Three Merger

The UK in 2024 also saw a notable merger decision that may have implications for companies looking to do deals in 2025. In early December, the UK Competition and Markets Authority (CMA) cleared the Vodafone/Three merger, subject to binding commitments. Taken together with recent announcements by the CMA’s CEO, Sarah Cardell, this decision suggests a shift in UK merger control towards a more permissive enforcement environment.

• The CMA has cleared the merger of two major UK mobile telecommunications operators. This represents a significant change from the CMA’s position in 2016, when it supported the EU Commission’s prohibition of a similar tie up between O2 and Three.
• The CMA has accepted a novel investment commitment combined with short-term customer protections, including time-limited price controls. This is a significant development in UK merger control, because it represents a departure from the CMA’s usual preference to impose structural remedies (i.e. divestitures) or otherwise block problematic deals. Top CMA officials have been outspoken against behavioral remedies in recent years, and the CMA has rejected such remedies in favor of divestitures in several recent cases. 

The decision follows indications that the new UK Labour Government was steering the CMA to pursue a less dogmatic approach to merger control consistent with the Government’s pro-growth agenda. In October this year, the UK Government promised to “rip up the bureaucracy that blocks investment,” encouraging regulators, including the CMA, to “take growth seriously.”[6]

In response, the CMA has signaled a change in its approach to merger review.  Last month, Sarah Cardell announced[7] a review in the agency’s approach to merger remedies that will include considering when behavioral remedies may be appropriate, the scope for remedies that lock in rivalry-enhancing efficiencies and preserve customer benefits, and ways to move to remedy discussions “as quickly as possible” in merger investigations. This case is the first example of this new approach in practice.

Increasing Scrutiny of AI Partnerships

Across Europe and ROW, agencies are increasingly scrutinizing AI and, in particular, AI partnerships. The UK’s CMA concluded its review of four AI partnerships in 2024, and cleared three of them (Amazon/Anthropic, Alphabet/Anthropic, and Microsoft/Mistral) because the UK lacked jurisdiction. For the fourth transaction (Microsoft/Inflection), the UK asserted jurisdiction but cleared the deal as not giving rise to competition concerns. 

For 2025, companies need to be aware that regulators are likely to take an increasingly expansive approach to jurisdiction when it comes to AI partnerships. They need to be aware from an early stage of the antitrust concerns around AI, and consider building into their governance framework the three core principles promulgated by the U.S., EU and UK agencies of fair dealing, interoperability and choice.[8]

This article was prepared with contributions from Cleary trainee solicitor, Devina Srivastava.

[1] European Commission, “The future of European competitiveness: Report by Mario Draghi” (updated September 9, 2024), available here.

[2] European Commission, “Commission sends preliminary findings to Apple and opens additional non-compliance investigation against Apple under the Digital Markets Act” (June 24, 2024), available here.

[3] European Commission, “Commission starts first proceedings to specify Apple’s interoperability obligations under the Digital Markets Act” (September 19, 2024), available here.

[4] For more information, see our September alert memo available here.

[5] The Towercast judgment made clear that the EC may challenge concentrations ex post under general antitrust provisions, notably Article 102 TFEU, irrespective of the existence of a dedicated EU merger control regime, Case C-449/21 Towercast, Judgment of 16 March 2023.

[6] UK Government Press Release, “Major investment deals set to be announced at government’s inaugural International Investment Summit as PM vows to ‘remove needless regulation’ declaring Britain open for business” (October 14, 2024), available here.

[7] Sarah Cardell, “Driving growth: how the CMA is rising to the challenge” (November 21, 2024), available here.

[8] European Commission, UK Competition and Markets Authority, U.S. Department of Justice, U.S. Federal Trade Commission,  “Joint Statement of Competition in Generative AI Foundation Models by EU Commission” (July 23, 2024), available here.