US antitrust lawsuits have been falling since the pandemic despite a high-profile legal war pitting Washington against Silicon Valley.
Civil antitrust cases alleging monopolistic mergers or business practices fell 42% between March 2020 and March 2023, according to the Administrative Office of the United States Courts, dropping to 361 from 626.
The numbers have gotten smaller despite a wide-ranging push during that period by the Biden administration to limit the concentration of power in key industries, including Big Tech.
The administration has alleged antitrust violations by tech giants Apple (AAPL), Amazon (AMZN), and Microsoft (MSFT), while taking to trial a case filed by the Trump administration against Alphabet (GOOG, GOOGL). It is also trying to block mergers that could eliminate competition in other industries.
The number of government antitrust cases filed for the 12-month period ending in March 2023 fell to 9, from 28 in 2020.
The number of private suits brought by companies alleging unfair competition in their industries fell to 352, down 42% from 2020.
It is possible that lawsuits rebounded over the last year; the government’s figures for the 12-month period ending in March 2024 are not yet available.
A separate analysis from legal analytics company Lex Machina shows a 19% increase for all of 2023. But even Lex Machina said that its figures show a general decline in antitrust filings over the last decade.
“Since 2015, the trend has been fairly significantly downward,” said Ron Porter, a data expert with the company.
“It’s a very real trend.”
‘Not easily answered’
Why the general decline? Legal observers have a number of theories.
“It’s a good question but not easily answered,” New York University economist Lawrence White said.
Perhaps a stronger enforcement climate is keeping anticompetitive behavior in check, or the government is choosing to go after bigger targets in exchange for fewer cases to save on costs and staffing.
Federal Trade Commission Chair Lina Khan told Jon Stewart last week on the Daily Show that when confronting big companies her staff sometimes can be “outgunned” on lawyers by as much as 10 to 1.
“We play to our strengths,” she said, by being “strategic” and “entrepreneurial.”
Other theories to explain the decline in antitrust cases are that companies increasingly view courts as unreceptive to their claims, or fear that the financial risk to take on an antitrust case is too high.
Some antitrust experts attribute the decrease to federal court decisions in a series of cases, including one Supreme Court case in 2004 where it ruled against arguments that Bell Atlantic and other successor companies to the old AT&T engaged in anticompetitive behavior.
More stringent requirements applied by other courts over the years also increased the burdens on private plaintiffs, particularly class-action plaintiffs, according to a 2020 report from attorneys at law firm Simpson Thacher.
That, according to the report, resulted in reduced frequency of filings and larger and more complex cases.
“It has to be a really meritorious case with high potential for significant reward,” said Randy Stutz, the president of the American Antitrust Institute, an organization that advocates for more robust antitrust enforcement by the federal government.
He suspects that high bar is likely keeping some credible claims from being filed.
“The value proposition is changing,” he added.
The drop in private cases could be a concern for federal antitrust regulators because corporate plaintiffs can provide “deregulated” checks and balances that can be overlooked or under-prosecuted by government regulators, University of Michigan Law School professor Daniel Crane said in a 2010 article.
Federal antitrust regulators like the FTC and the Justice Department have “become more and more dependent on private actions that serve that deterrent function,” Stutz said.
White, who sits on the advisory board of the American Antitrust Institute, disagrees that the decline in lawsuits can be easily attributed to a single cause, like less enforcement power.
“I’m very sympathetic to much of what AAI does, otherwise I wouldn’t be on their board,” White said. “But to wring your hands and decry every time there’s a decline in lawsuits filed and think that means there’s less enforcement, that doesn’t follow.”
There’s no question, White said, that US court decisions have made it harder to bring antitrust lawsuits. But what makes it complicated to pinpoint the exact cause of a case decline, he added, is that government penalties have become steeper for antitrust violations.
“Fines are steep,” he said. “And people go to jail for price fixing.”
‘The system is rigged’
The calculus to go forward with an antitrust case is even more challenging for businesses that rely on dominant firms in their supply and distribution chains. Those companies, Stutz said, may shy away from antagonizing a critical partner with an antitrust suit.
To bring an antitrust suit against Amazon as a private plaintiff you would have to hire a “fancy antitrust lawyer” and “a fancy antitrust economist” and thus “the scale doesn’t make sense to bring these claims individually,” economist expert Hal Singer, managing director of Econ One, told lawmakers on Capitol Hill during an antitrust hearing in February 2021.
“And so the system is rigged effectively to immunize Amazon from antitrust scrutiny, at least by private complainants.”
Some recognizable companies, however, have decided to take on that risk over the past year.
The latest crop of company-initiated cases includes complaints by pharmaceutical giant Regeneron (REGN) against rival Novartis (NVS); publishers Helena World Chronicle and Gannett (GCI) against Google; and a group of pharmacies challenging the actions of Cigna’s pharmacy benefit management organization Express Scripts (CI).
Companies have had mixed results. In two closely watched antitrust cases by popular video game developer Epic Games against Apple and Google over their respective app stores, Epic won its case against Google but mostly lost the case against Apple.
One private company successfully challenged a merger. The case, brought by door manufacturer Steves & Sons, unwound a tie-up between door and frame manufacturers Jeld-Wen (JELD) and competitor CMI.
Another set of antitrust cases upended the real estate industry. Residential home sellers across the country alleged the National Association of Realtors, its member agents, and Keller Williams and HomeServices of America illegally required sellers to pay buyers’ agent commissions.
A federal jury in Missouri in one case returned a $1.78 billion verdict in favor of sellers, a figure that could as much as triple, or decrease, at the presiding judge’s discretion.
Another case was dismissed. US Wholesale was not able to successfully argue that rival Living Essentials unfairly offered Costco better prices, discounts, and reimbursements on sales of 5-hour Energy. But the case left the door open to allow US Wholesale to refile its claim.
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.
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