Vinson & Elkins partner Craig Seebald, a top antitrust litigator, analyzes last week's DOJ challenge to a $13 billion deal by UnitedHealth and the future of competition law.
Posting on behalf of a reader who emailed me (as some readers prefer to do, instead of posting under their own names:
"My question would be is there any consensus in Congress or in reform minds that we should change the 'consumer welfare' standard that more or less governs antitrust. Isn’t there still fealty to that standard among judges? If that is to be replaced or amended, then 'to what'?"
"I think reformers have been hesitant to define a new standard with any precision, and that risks a certain amount of intellectual incoherence. Until Congress acts. I haven’t looked at the proposed bills; I’m sure they all use words that give judges some leeway in interpreting how to apply them. But what’s the lodestar of the new approach?"
You’ve hit the nail on the head. In a part of our conversation I excluded for length reasons, Craig and I actually talked an emerging school of thought that looks at a broader array of stakeholders, including labor, when it comes to antitrust. There are hints of that in the DOJ’s UHC complaint. But yes, your summary of the status quo is accurate.
Posting on behalf of a reader who emailed me (as some readers prefer to do, instead of posting under their own names:
"My question would be is there any consensus in Congress or in reform minds that we should change the 'consumer welfare' standard that more or less governs antitrust. Isn’t there still fealty to that standard among judges? If that is to be replaced or amended, then 'to what'?"
"I think reformers have been hesitant to define a new standard with any precision, and that risks a certain amount of intellectual incoherence. Until Congress acts. I haven’t looked at the proposed bills; I’m sure they all use words that give judges some leeway in interpreting how to apply them. But what’s the lodestar of the new approach?"
And now responding under my own name:
You’ve hit the nail on the head. In a part of our conversation I excluded for length reasons, Craig and I actually talked an emerging school of thought that looks at a broader array of stakeholders, including labor, when it comes to antitrust. There are hints of that in the DOJ’s UHC complaint. But yes, your summary of the status quo is accurate.
Great story, David!