Antitrust in Times of Crisis

The COVID-19 virus has upended our lives and forced individuals, businesses, and governments alike to adapt with urgent creativity. The U.S. antitrust enforcement agencies in particular have taken steps throughout the pandemic to keep their operations running smoothly and streamline competitor collaborations to address the health crisis, but have resisted any major changes to their enforcement philosophy. In the U.S. economy more broadly, the pandemic has sparked a wave of bankruptcies across many different industries. Even if the technicalities of the “failing firm” defense are not met, purchases of distressed com-panies that raise antitrust issues are sure to be affected by the implica-tions of collapsing industries. Finally, COVID-19 has highlighted our reliance on technology platforms for our everyday lives and business, as shown by simultaneous investigations by the U.S. and European anti-trust enforcers and the U.S. House of Representatives. There are calls for sweeping changes in antitrust law targeted at the big technology platforms, which would entail flipping presumptions of legality and overturning decades of court precedent. These trends are creating the greatest amount of uncertainty in antitrust policy and enforcement in decades.

By Maureen K. Ohlhausen¹

I. INTRODUCTION

The COVID-19 virus has upended our lives and forced individuals, businesses, and governments alike to adapt with