Janet Jones-Duffey on LinkedIn: Proposed Update to U.S. HSR Merger Clearance Process Risks Extended Review… (2024)

🇪🇺🤝🇺🇸 DG COMP #50yearsBrusselsNewYork conference highlights non-competition values, the consumer welfare standard, and legal process as defining differences in US and EU competition law enforcement. According to Barry Hawk, 4 key themes drive cycles of enforcement resulting in convergence or departure between the US agencies and the EC:1. Developments in economic theories2. Developments in the facts3. Political support for enforcement4. Courts and attitudes about legal process🐎 So who's out ahead? The US may have laid the legal and economic groundwork, but a more flexible standard of harm and willingness to regulate beyond pure competition issues in the EU, alongside a narrowing of monopolization law in the US, may give Europe the edge as the leading antitrust authority today, especially when it comes to tech.⚡What have we learned from each other? I had the pleasure of discussing ahead with panelist and colleague, Thomas Janssens, the role of open dialogues and robust economics in achieving joint progress, where the US may have been asleep at the switch on recent market shifts, and what observations can be drawn by the EU from judicial check in the US. #antitrustlaw #competitionlaw

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📣 Global citizen alert: Here’s a 2-minute crash course on the upcoming #Europeanelections, how the EU Parliament works, and what areas of important legislation on things like consumer law, environmental law, and economic affairs will be shaped by the outcome. A must-watch for anyone like me who spent a year learning about Texas History instead of other important political systems affecting our increasingly connected lives! But don’t worry… I will always #RememberTheAlamo 🤠

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EU regulation is full steam ahead on #tech, with #GDPR, #DSA, #DMA, #DataAct and now the #AIAct. With roots running deep through Europe, Freshfields Bruckhaus Deringer is at the forefront of tech trends reverberating globally. No matter where you are, keep up with the latest from our new “EU AI Act unpacked” blog because #AI enforcement efforts are coming your way 🛸

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Yesterday, the EU General Court heard the first #DMA-related hearing on the designation of ByteDance. Though unlikely to bear on the merits of the case, the Court pinpointed legal uncertainty in the regulation, asking the European Commission to explain the meaning of recital 23, which is not clear on its face. For other #gatekeepers, this could be a helpful endorsem*nt of the EC’s responsibility to provide clarity where the text falls short.Global Competition Review covers more details here:https://lnkd.in/eW9nFYAk

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“Stable and agile” is how Margrethe Vestager describes #EUmergercontrol in two words. Celebrating #20yearsEUMR today, she highlighted that the best legal instruments are those that allow enforcers to modernize without having to change the legal text. And how is the European Commission modernizing enforcement? By focusing on innovation, taking stock of today’s competitive landscape where effects can happen in a span of months, rather than years, and adapting to shifts in market dynamics, with specific reference to #conglomerates, #oligopolies, and #digitalmarkets, where network effects, interoperability, and access to data all play a role.🌟 The goal: to boost competitiveness by invigorating the internal market, contributing to European resiliency, and giving businesses of all sizes a fair shot, with a nod toward consistency with the American ‘whole of government’ approach to #USmergercontrol.🌳 The conclusion: “Some are asking for a very hard pruning of a tree, others would like to see it chopped altogether. If you ask me, when you have a beautiful tree, admire it, cherish it, hug it once in a while… and you will see that it will keep blooming.”

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What is #DMA compliance... does anyone know? Margrethe Vestager's remarks during the Enforcer's Rounddtable at the American Bar Association Antitrust Law Section Spring Meeting last week are still ringing in my ears back in Brussels where DMA investigations are underway. In response to being asked what are the current challenges of the DMA, she said that #gatekeepers don't seem to know what #compliance means. But is that any surprise when compliance means achieving undefined objectives of 'fairness' and 'contestability'? She offered direction by strongly encouraging gatekeepers to engage in market testing. But regardless of whether you believe market testing affirms outcomes or subverts proportionality, this response seems to suggest that compliance is not so straightforward after all. At the very least, gatekeepers under investigation can expect to find out what compliance means to the European Commission by this fall. Earlier this month during a meeting of the European Parliament's Committee on Internal Market and Consumer Protection, Vestager said the EC will issue preliminary findings in September. Addressing the gatekeepers: "I hope they've had a very nice Easter because they will have to work a lot over the summer."

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What do #abaspringmeeting and this photo have in common? Both are a blur! 💫 But FaceTiming with my husband and son in France ahead of my panel on DMA enforcement in the EU somehow perfectly captures this professional moment as an American practicing in Brussels and bringing a cross-border perspective back to DC. Looking forward to more opportunities like this one as both jurisdictions keep a close watch on one another. 🇪🇺👐🇺🇸

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Thoroughly enjoyed discussing David Spade, bridges to Disneyworld, and Hermès salespeople as potential gatekeepers within #DMA, #USantitrustlaw, and economic frameworks, with David Lawrence, Juliette Caminade, Noah Phillips, and Rishi Satia on our panel, “Reining in #Gatekeepers and Ecosystems,” at American Bar Association Antitrust Law Section Spring Meeting this morning. In a nutshell… which approach we consider effective depends on what we’re trying to achieve. While the DMA pursues fairness alongside contestability with respect to specific conduct by specific actors, economists place a critical eye on incentives and interdependency between products and services within an ecosystem, and the US remains a diligent defender of consumer welfare with an inconsistent itch to address harms falling outside of traditional antitrust. As for effects? See you at Spring Meeting next year!

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EU regulators on US turf bringing important insights on a major theme at the American Bar Association Antitrust Law Section Spring Meeting,are existing antitrust laws capable of addressing #digitalmarkets today?🇪🇺 EC take: According to Alberto Bacchiega, learn from experience and regulate. On measuring compliance solutions… "they work, if they work"🔑 Upside: #DMA avoids hurdles to enforcement, like market definition and proving effects, while creating efficiencies in outcomes across similar situations.🇺🇸 Faithful US approach: DOJ attorney Daniel Guarnerasays defining markets is an important exercise in reflecting competitive realities. FTC Attorney Advisor Ricardo Woolery points to use of Section 5 of the FTC Act in the Amazon e-commerce case as an example of reactivating its existing toolset. 🔎 Some skeptics: Practitioners ask what about the right to monetize? Proportionality? How do you reconcile business rights with more access and choice for platform users?✨ Economic realism: according to Cristina Caffarra, constellation theories of harm involving the ability to swing resources across markets require prescriptive regulation. Traditional leveraging theories addressing narrow markets result in absurd scope of remedies. The law must evolve.

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On my way to join this powerhouse all-women lineup of Freshfields speakers at the ABA Antitrust Law Spring Meeting in DC. Looking forward to seeing some familiar faces there… give me a heads up if you’ll be around! ✈️

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