Chair Khan’s Priorities
In a memo dated September 22, 2021, the Chair of the Federal Trade Commission (“FTC”), Lina Khan, described for the FTC Staff and fellow Commissioners what she described as her “vision and priorities for the FTC.” The policy priorities Khan outlines include:
- addressing “rampant consolidation and the dominance that it has enabled across markets”;
- focusing enforcement on “the most significant actors” to have the greatest impact on the lives of Americans;
- revising the merger guidelines in conjunction with the Department of Justice;
- finding ways to “deter unlawful transactions”;
- focusing more on the potential impact “private equity and other investment models” may have in facilitating unfair methods of competition and consumer protection violations; and
- taking aim at certain overbearing contract terms including “non-competes, repair restrictions, and exclusionary clauses.”
More Enforcement, Broader Theories of Harm
Chair Khan views these policy priorities as in line with her “holistic approach to identifying harms, recognizing that antitrust and consumer protection violations harm workers and independent businesses as well as consumers.” In short, the actions of dominant players in every industry will remain the focus, and we are likely to see more enforcement actions based on new and expansive theories of harm. It is unclear how these new theories will comport with well-established antitrust law.
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