Clifford Chance

Brian Concklin

Hello everyone, welcome to the Clifford Chance Podcast, where we discuss pressing issues and trends faced by the business world today. I'm Brian Concklin, a partner at Clifford Chance here in Washington, DC , and today I'm asking some of my global antitrust teammates to share some highlights from the 2025 Antirust Spring Meeting Week. Now for Peter Mucchetti, another partner in our Washington, DC office, what are some of your takeaways in particular regarding Tech?

Peter Mucchetti

Thanks, Brian. So technology was another area where people were really focused on what they would hear from the Federal Trade Commission and the Justice Department because everyone has been wondering, are we going to see a shift in priorities from the new administration. But what we've heard from Andrew Ferguson, as well as from Gail Slater, is that it's kind of full speed ahead in the technology sector. Chair Ferguson said that he supports vigorous tech enforcement, including the underlying theories in the Epic Games, lawsuits against Google and Apple. On artificial intelligence, the federal agencies gave a more balanced message, discussing the importance of not unnecessarily discouraging investment and innovation in AI through over enforcement.

And then finally, I think the last area to watch are these two cases that are well developed. First, there's DOJ's case against Google concerning search, where we're going to see what remedy Judge Mehta will impose. And then finally, the FTC's case against Meta will be starting up this week here in the District of Columbia. And interestingly, both of these cases were cases that were started in Trump One continued all through the Biden administration and now are being continued in Trump Two.

Brian

Thank you very much, Peter. I think it will be interesting to see how those cases develop. And next, Lauren Rackow, a counsel from our New York office, what were some of your highlights and key takeaways from this year's Spring Meeting?

Lauren Rackow

A key takeaway for me was hearing some of the differences in the way that federal and state enforcers are approaching roll ups in healthcare. Roll ups have been a really hot topic in healthcare now for a few years and with the new administration, there has been some suggestion that private equity buyers or the structure of a transaction should not inherently raise antitrust concerns. Rather, the federal enforcers are looking at the effect of the transaction on competition using horizontal and vertical theories of harm regardless of the corporate structure of the buyer. States, on the other hand, may take a different view. A panelist from the California AGs office, for example, took the position that PE firms inherently are profit maximizing in a way that sometimes warrants additional skepticism versus a nonprofit or non PE buyer. So I think we'll potentially see in some situations more divergence from the way that federal and state enforcers are reviewing private equity transactions in healthcare.

Brian

Lauren, thank you for that insight. Certainly we'll have to keep an eye on how the states and the federal government diverge in this important area. Next, Will Lavery, another partner from our Washington DC office focusing on litigation. What were your takeaways, particularly as we think about antitrust litigation?

Will Lavery

Hey Brian, I'm excited to be on this podcast. So I've been attending the NHS spring meeting for about 20 years now and aside from catching up with friends and former colleagues, which is obviously always a highlight, my favorite part of this year's meeting was definitely our antitrust litigation panel that we had on Tuesday where we focused on artificial intelligence in some of the algorithmic pricing cases. We had great speakers, they really nailed the key issues relevant across the US, UK and EU, one particularly interesting topic which I mentioned was the various algorithmic pricing cases ongoing right now. I think these cases, which the panel highlighted, they're really just the tip of the iceberg in terms of the antitrust challenges we're starting to see and will continue to see as AI technology advances and becomes more embedded in both commerce and frankly, our day-to-day lives.

The cases the panelists discussed, they highlighted some of the fundamental questions about how antitrust laws should be applied when decisions are increasingly driven by algorithms rather than human actors, and the complexity of this adds to detecting and proving collusion or whatever anti-competitive behaviors alleged. It's something that the panel discussed at length. The panel also went into some detail about how courts will have to grapple with not only defining what constitutes an agreement here, but also who or what can actually agree, particularly if machines are ultimately making pricing or other market decisions.

The panel discussed all these issues, they discussed things like willful blindness when creating or managing these AI programs could become central to liabilities, among others. And one other big takeaway from the meeting, which is somewhat unrelated, but it's likely to overlap significantly, at least in practice, is it's the notable rise of antitrust investigations and litigation led by state attorneys general. This has really been building momentum for several years now and based on discussions throughout the conference, it's clear at least to me, from what I'm hearing that the trend is accelerating. State AGs are becoming not only more aggressive but also more coordinated with their efforts. They're often forming multi state coalitions and they've been doing this for years now, and they've been focusing on industries that are at issue here, such as technology and healthcare and given the shifts in federal antitrust enforcement that we experienced in the last administration, many of the state AGs really stepped up and we're still waiting to see how these dynamics fully play out under the current administration. But this is a trend that we think will likely continue, and it's possible that State AGs move in to step in to fill any enforcement void that might arise. This is something that companies need to pay close attention to, and this is a topic that was on folks' minds at the conference.

Brian

Will, thank you very much for that insight. And next, Milena Robotham, a partner from our Brussels office. I'm curious, especially as someone not based here in the US – what were some of your highlights, particularly when we think about the events that were going on around the spring meeting?

Milena Robotham

One highlight was my conversation with Olivier Gerson at the GCR live conference on antitrust and digital markets on the eve of the Spring Meeting, in which we talked about many issues and he shared his views on the revised horizontal merger guidelines and how they may reflect recommendations from the Draghi report, and more generally, what we can expect from the EC on killer acquisitions.

Another standout highlight for me was attending our CC women in antitrust networking event on Thursday of ABA Spring Meeting week. It was really, really wonderful to see so many of our clients and colleagues together. We had lively music and we had lively conversation, so that was definitely a personal highlight amidst a week of great events.

Brian

Thank you very much. And Mark Basin as the global head of antitrust here at Clifford Chance, what was your favorite part of the Antitrust Spring Meeting?

Marc Besen

Opening and joining our Roundtable event focusing on competition issues with food and other supply chains, chaired by our colleagues Leigh Oliver and Nelson Jung, was quite fun and it was a wonderful opportunity to get together with so many clients to discuss a really timely topic and then to move to the rooftop for reception. Even the cold wind could not stop the heated debate about the antitrust challenges for companies being active in the food supply chain.

Brian

Thanks, Mark. I've got to admit it's a little difficult for me to hold back making more witty food-related jokes, and I also have to say, although it was a terrific event, the cold wasn't nearly as bad for some of us that are used to the weather here in Washington, DC.

Thank you everyone very much for taking the time to listen. You've been listening to the Clifford Chance Podcast. Please subscribe to our podcast and follow us on LinkedIn. Thank you very much.