O'Melveny Insights 2023

3 Monopsony or Buyer-Power Theories, Especially in the Labor Context. These cases allege that competitors have agreed to restrict worker compensation or that parties are merging to increase their power to artificially depress wages. Main Street Protectionism. These cases take on the so-called “too big to fail” phenomenon by: challenging vertical mergers, which grow the size of a business without consolidating a specific market; scrutinizing horizontal mergers, particularly those that involve incentives for research and innovation; viewing merger efficiencies with increased skepticism; exploring refusal-to-deal theories when firms use their power to hobble nascent competitors; and reintroducing criminal liability for monopolization. Shaping the New Economy. Another iteration of Main Street protectionism, these cases target technological innovators that have earned a loyal consumer following and have allegedly leveraged that position to buttress their core business and take control of other markets. Lurking in the subtext are questions over the role of data, privacy, and artificial intelligence in the economics of antitrust: What counts as “payment”? How can a “free” good or service become anticompetitive (if at all)? And is a diminution in privacy protections a competitive harm? Directing Millennial-Era Economic Theories. These cases aim to develop the law that governs a changing economy. For example, two-sided markets, and the law governing them, date back well before social media. But the dynamics of two-sided transaction platforms, a digital-age development, have put pressure on courts to explain how the law should be advanced to define those markets, measure competitive harm, and assess damages. O’Melveny features a ‘prominent antitrust team with comprehensive litigation expertise and a strong merger clearance practice, handling major global transactions.’ —Chambers USA Antitrust was designed to evolve with economic realities. It began as a statute only a few sentences long. But what followed—both legislatively and judicially—covers volumes. This most recent era of reinterpretation has spawned new and aggressive approaches to enforcement: