In this inaugural episode of “The Informed Board” podcast, Skadden partners Maria Raptis and Raquel Fox join our host Ann Beth Stebbins to discuss changing approaches to antitrust and securities regulation in Washington. They talk about new priorities in antitrust enforcement, new disclosure initiatives by the Securities and Exchange Commission (SEC), and the obstacles that could hinder regulatory rulemaking. 

Since President Biden took office, there has been a shift in Washington. The administration’s policies were no surprise; the president campaigned on them. But the ways in which regulatory agencies have been harnessed to pursue the administration’s objectives is new: broadly exercising their review authority and proposing a host of new regulations with expansive goals unrelated to their traditional mandates. In part, this reflects the difficulty of passing legislation in areas that are priorities for the administration. 

In antitrust, the focus has broadened under the Biden administration. Top officials believe that antitrust enforcement has been too lax, leading to too much consolidation and too much concentration of economic power. Antitrust officials contend that the consumer welfare criteria that have dominated antitrust analysis for the past 50 years are too narrow, and that antitrust laws give antitrust agencies a broader mandate to consider the impact of mergers on workers and small business.

However, Maria says we’re unlikely to see a sea change in antitrust law anytime soon unless legislation is passed to change the legal standards and make it easier for the FTC and the Department of Justice to challenge mergers. Despite antitrust regulators’ ambitious goals, there are many obstacles to swift, sizeable change, including many decades of court precedent that focus on consumer welfare tests.

On the SEC side, for the first time in many years, the agency’s rulemaking resources are not devoted to congressionally mandated regulations, so the commission can take up broader issues prioritized by the White House, including climate change and human capital. The SEC recently proposed new rules requiring detailed climate disclosure, and we expect proposed rules requiring additional workforce-related disclosures before the end of the year. 

But, like the new antitrust policies, the SEC’s initiatives may be challenged in court. Critics say the climate disclosures would require costly outside audits and attestations, as well as complex greenhouse gas measurements, Raquel explains. The proposed rules might be challenged either on the ground that the costs outweigh the benefits or that, with no explicit legislative mandate, the proposed disclosure requirements are beyond the SEC’s remit.

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Name: Ann Beth Stebbins

Title: Partner at Skadden

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Name: Maria Raptis

Organization: Skadden

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Name: Raquel Fox

Organization: Skadden

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The Informed Board is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

From Skadden, you are listening to The Informed Board, a podcast for directors facing the rapidly evolving challenges of a global market. A complement to our newsletter for directors, our aim with this podcast is to help flag potential problems that may not be fully appreciated, explain trends, share our observations and give directors practical guidance without a lot of legal jargon. Join Skadden partners who draw on years of frontline experience inside boardrooms to explore the complex issues facing directors today.

I’m Ann Beth Stebbins, a partner in Skadden M&A group. I listen to a lot of podcasts. For me, it’s a great way to absorb content on topical issues. We’ve created The Informed Board podcast to keep you, our audience, in the know on what directors need to know about legal issues impacting board decision-making. Welcome to episode one of The Informed Board.

We’ve seen a real shift in Washington since President Biden took office. The policies advanced by the administration may come as no surprise. But one thing that feels different is the means that the administration is using to advance its objectives. In our polarized political climate, it’s not so easy to get legislation passed that addresses the issues that were front and center in the election, like climate change, income inequality. Is the Biden administration using the rulemaking authority and review processes of regulatory agencies to advance its policy objectives even in areas that seem outside the lane of those agencies purview.

What are the limits on an agency’s rulemaking authority?

Joining me today to talk about rulemaking activity in Washington are Maria Raptis, a partner in Skadden’s antitrust practice , and Raquel Fox, a partner in Skadden’s SEC practice. Welcome, Maria. Welcome, Raquel.

Thanks for having us, Ann Beth.

So Maria, let’s kick off with you. First of all, just ground us a little bit, in how antitrust is regulated in the U.S. We have two agencies, what are their mandates? Let’s just set the table here.

Sure. So this is going to be Antitrust 101 in 30 seconds, but the U.S. antitrust laws broadly speaking aim to police efforts by companies to reduce competition or create or maintain dominant positions or monopolies. And there’s really three principal federal statutes at play. The first one is the Sherman Antitrust Act, passed in 1890. And that was really in large part, a response to concerns about the harmful effects of large new concentrations of economic wealth and enforcement was within the purview of the DOJ. And up until today, we have the Antitrust Division of the Department of Justice as half of the picture for federal antitrust regulation. And while the Sherman Act is a powerful weapon today, initially its enforcement was viewed as pretty insufficient by critics and they called for more focused antitrust legislation. And then we got two more laws in 1914, the Federal Trade Commission Act and the Clayton Act. The FTC Act really created the Federal Trade Commission.

It bans unfair methods of competition. This is an oversimplification, but you can think about it as coterminous with the Sherman Act. The FTC as an administrative body is headed up by a commission. So, whereas in the Antitrust Division, you have decision- making authority emanating from the Assistant AG, at the FTC, there’s a five-member commission that acts by majority.

The Clayton Act address some specific practices such as mergers, which I think is a large part of what we’ll be talking about today. And both the FTC and DOJ are authorized to enforce the Clayton Act. So in sum, we have two agencies, their authorities overlap, but they also complement each other and, over the years, each agency has developed expertise in particular industries.

And so DOJ, their mandate, or at least from the legislation that created their authority in this area, was concentration of wealth. And FTC was more consumer-focused. Is that, if you have to think about the two agencies and, what their original mandates were?

I think that’s a fair characterization that the Sherman Act started it all and the FTC Act was meant to be more consumer-focused. And, therefore, you have not just the Bureau of Competition, which within the FTC, but also Consumer Protection.

How has the agency’s focus changed in this administration? Thinking back to their origins, thinking back to past administrations and how they behaved. What’s different in this administration?

So I would say that the focus has broadened. The Biden administration has appointed so-called progressives to head up the FTC and the DOJ. You may have heard them refer to as Neo-Brandeisians. And that’s because-

What does that mean?

It’s really because Justice Brandeis was an original proponent of the Clayton Act. He was a proponent of the Clayton Act because, at the time, he and others felt that the Sherman Act did not have enough bite. And it was really an effort to create more specialized antitrust statutes to curb practices, such as mergers, that could lead to those concentrations of wealth. So what the progressives say is they want to go back to that original intent of the 1914 statutes, which was to strengthen antitrust enforcement. And that’s why they call themselves Neo-Brandeisians.

And strengthen beyond consumer protection, or strengthen beyond concentration of wealth.

While they say two things: Antitrust enforcement and merger enforcement in particular has been too lax. and it’s led to too much consolidation, meaning too much power in the hands of large companies to the detriment of, not just competition, but small business and labor. Their number one example is big tech, but certainly that’s not the only focus But they favor more enforcement, but not just more enforcement. And this gets to your question, they favor a broader lens through which to view competition. So for about 50 years, competition has been about consumer welfare, which has largely been measured by prices and output and quality.

So if a merger was going to lead to higher prices, that was bad. This new slate of regulators says, “It’s not just about prices. It’s about preserving the competitive process and how market power can harm workers, not just consumers, but workers, suppliers, small businesses, even if the merger passes the consumer welfare or the price test. You need to look more broadly at the harms and the impacts that have been created by these concentrations of power.” So for example, they want to look at how a merger affects employees. Does it give the combined companies some sort of power over labor? And they look at what are the non-compete policies of these companies?

So tying that back into my original question of the Biden administration using rulemaking authority to advance policy objectives, this seems to me to tie into income inequality, using antitrust laws and the interpretation of those laws to help the little guy. Is that how you’re thinking about it?

I think that’s exactly right. The chairwoman of the Federal Trade Commission, Lena Khan wrote an article, a law review article, many years back called the “Amazon Antitrust Paradox,” and her theory is, even though Amazon can offer great services and lower prices to consumers, their dominance and their size really allows them to squeeze out small businesses, and ultimately that’s going to be bad for everyone.

Even though consumers might have lower prices now because of the efficiencies of Amazon, and consumers might be happy with Amazon because of the convenience of Amazon. She’s thinking of effects beyond consumers, the effects on small business, the effects on suppliers who get squeezed out, and has defined those constituencies as being part of the mandate of the agency.

That’s right. And also labor, that’s, I think, one important one to keep in mind is, how does combining companies impact employees’ ability to move around between jobs, negotiate for better benefits, negotiate for higher salary? That’s a big focus.

So are you seeing the agencies turn down mergers or challenge mergers on those bases, on some of these new theories or new areas of concern?

No, not yet. I think that they’re asking the questions right now, but you have to remember that the FTC and DOJ —and this is pretty unique in the world schema — the FTC and DOJ, in order to actually challenge a merger, have to go to court and win in court, for the most part. They can try to negotiate a settlement with the parties, but ultimately they have to go to court. And there is a very long standing body of precedent that doesn’t take these things into account, that’s more focused on the consumer welfare test and they would have to overturn decades of precedent in order to successfully challenge a merger on these grounds. So it hasn’t happened yet.

Or have Congress actually enact legislation.

That’s right.

So there are limits on their rulemaking authority, they can ask the questions, but ultimately if they challenge a merger on these grounds, it’s going to go to court and I think judicial system would respect precedence of 50 years. Is that the prediction here, if we were to think about how all of this rhetoric plays out?

Yes. As we know courts move very slowly in changing. I think that the smart money is on, “we’re not going to have a sea change in antitrust law anytime soon.” Unless. as you point out, and we can talk more about this later, there’s legislation passed, and there has been legislation proposed to change the legal standard and make it easier for the agencies to challenge mergers. But, unless that happens, the FTC and DOJ have a pretty tough road ahead of them to try to challenge mergers on this basis.

So, Maria, recently, a fifth FTC commissioner was approved. And until this commissioner was approved, the commission had been operating with four commissioners, two Democrats and two Republicans. So I presume there were deadlocks that made it more difficult for the FTC to act. Is that right?

That’s fair. Originally Bedoya was nominated back in September of last year and he was held up at committee with a tie vote at the end of the year. So he had to be renominated in January. The Senate voted to confirm him, but the vote was 51 to 50. It required Vice President Kamala Harris to break the tie. And the reason Republicans cited for some of that opposition is that the FTC became too politicized in this, in the past few months, and that Bedoya’s views tend to be divisive, and they would have preferred someone who could drive more consensus —which, by the way, is a tall order. The current commission is probably the most openly hostile and critical of one another that certainly I’ve seen in my career.

But the final approval of Bedoya gives Khan the 3-2 Democratic majority that she needs to override some of the Republican opposition to this ambitious set of goals and pursue a more aggressive agenda, which could lead to the FTC, bringing more merger challenges and challenges that are based on more novel theories.

There’s also some discussion around the ability of the FTC to use its rulemaking authority to drive change. Very controversial. But the commission does have the ability to use trade regulation rules to address practices that occur commonly in an industry. And that’s pretty fraught. There’s a lot of procedural obligations around it. Commissioner Khan has voiced a preference to be able to simplify that and use it more, use that rulemaking authority more. We’ll probably see efforts to do that now that Bedoya has been approved.

So that’s using rulemaking authority to eliminate some of the procedural hurdles. And that seems to be within their purview, right? You wouldn’t need to get court approval to do that. You wouldn’t need legislation passed to do that. So we may see some movement in that area.

That’s right. I think they will try to pursue changes to rules. The problem, of course, is that regulations are always challenged and those challenges take a long time to settle out. And so again, I think the goals and the agenda are very ambitious, but there are obstacles to actually accomplishing those goals.

So Raquel, this is a great segue to you. Maria was talking about the political divide among the commissioners at the FTC, which now may become more pronounced that we have a third Democratic commissioner. The SEC is also set up as a commission. Talk about the political climate at the SEC. and if you are seeing the same thing at the SEC that Maria is seeing at the FTC and DOJ.

The SEC is an independent body. It’s an independent agency, but I’d say there’s some serious question marks around that because of course the commissioners are appointed by the president and there’s oversight by Congress as well as a lot of coordination with Treasury. So Congress controls the purse strings of the SEC. We used to kind of think of them as the board of directors for the SEC because, of course, they have oversight hearings where they ask the SEC what they’ve been doing and question their oversight as well as they control the budget. So they control the purse strings of the SEC. So, for example, the SEC put in its most recent budget, and they talked about their key priority areas, which were IPOs, special purpose acquisition companies, as well as crypto and using more data analytics.

One thing that was interesting about their request is they said that they expect that more cases are going to be litigated, and that’s why they need more money and more people. An outgrowth of that is just recently the SEC announced that it was doubling its cyber unit. Which, when you hear cyber unit, you think of cyber security, but it’s way more than that. That also entails digital assets. So yes, the SEC does not shy away from issues recently that people may say are more political, which I’m guessing we’ll talk about that a little bit later.

Well, what about the topics that the SEC has been taking on? There’s been a lot recently about rulemaking in areas that are not traditional areas for the SEC. And I know you’re going to tell me the SEC is a disclosure agency. so they can’t force registered companies to behave in a certain way, but they can certainly force disclosure about how a public company is behaving. So talk about some of the topics, Raquel, that the SEC has taken on recently.

The SEC under Gensler does have a very aggressive rulemaking agenda. And one difference is this is the first time in probably a long time that the SEC doesn’t have a lot of mandated rules from Congress. So it can really sit back and think about what are some of the rules that we want to enact, as opposed to, we have lots of Dodd-Frank rules or Jobs Act.

So normally when the SEC engages in rulemaking it’s because the legislature has passed legislation and then says, “SEC, come up with rules to implement this legislation.” Is that more the historical way of doing things?

In more recent years, the SEC has had so much rulemaking from Congress that they haven’t had the resources to do anything else. Think about the financial crisis and the Dodd-Frank Act and all the rulemaking that came out of that. They probably had 70 or so mandated rules. So once you have the mandated rules with specific timelines, it makes it hard to say, “We have this drawer of things that we’ve been wanting to do.” So now they have the time, the resources to dust the things off out of the drawer that they’ve been wanting to do probably for years.

So this stuff they’ve wanted to do, or is there some influence from the administration saying, “These are our policy objectives. Can you use your rulemaking authority to help us advance these policy objectives”? Or are these things that the SEC really did have in their drawer and just hadn’t gotten around to them?

I would say it’s both. So when you think about rules about share repurchase, or 10b5-1 plans or proxy rules, those are things that the SEC has been wanting to do, at least the topics. I’m not saying the exact way that…,

Right. And those are in the lane. Those are what you think about. Those are things you think that the SEC should be doing, right?

Exactly. When President Biden rolled out his agenda, one of his priorities is climate. And that is something that is on the SEC’s radar, too, as well as Congress. So the SEC put out a very extensive climate proposal a few weeks ago. It was very detailed, very prescriptive. And when the SEC in the past is done what people have called specialized disclosures — for example, resource extraction, which is a rule you wouldn’t think of the SEC as normally doing — that was mandated by Congress through the Dodd-Frank Act. So this is the first really specialized disclosure that I would say that hasn’t been mandated through legislation.

So does the SEC have the authority to require disclosure on climate? It hasn’t been mandated by the legislature. How far can they go?

So the SEC has a mission. Of course, the tripartite mission that we always hear about. And one interesting thing was the loan dissent on this rule, the Republican commissioner Hester Peirce, the title of her dissent was, “We’re not the Securities and Climate Commission.” She said, “at least not yet.” So I would expect that this rule will be challenged. And I would say some of the grounds that it may be challenged on are, “Does it fit within the SEC’s mission? Did they go beyond the scope of their authority? Is the rule arbitrary and capricious,” which, those are key terms that the court will look at. The other thing I would say is people are saying, “Is it compelled speech?” I’ll leave that to our constitutional scholars to weigh in on that. But the thing that I’m probably most focused on, and what we used to focus on when I was at the SEC, is, “Do the benefits of this rule and the cost, are they aligned?”

So does do the cost of the rule, outweigh the benefits. And we spent a lot of time when I was at the SEC, really digging into the economic analysis to make sure that it’s sound, and with this climate rule, people are saying “It’s going to cost companies big and small, a lot of money,” because it’s going to require them to have this information to be audited in some instances, to go out and find another independent person to provide assurance. All of those things add up and cost money, as well as just trying to get your climate disclosures together and measure your greenhouse gas. So I think that is one area that proponents will weigh in on.

And going back to the SEC’s mission, just like we were talking to Maria, what was the original mandate of these agencies. The SEC has a tripartite mission, as you mentioned. Investor protection is one of those pillars. And the way I think about it, there’s a difference between investor protection and investor choice, or investor allocation, and investors might want this information. And I think that was an important part of the proposing release. Investors really want this information, they are demanding that companies disclose it. This is now bringing uniformity to those disclosures. But is it investor protection or is it giving investors information they need to allocate and make investment decisions? And where is the line? What is the SEC’s mandate investor protection or giving investors all the information they need to allocate their resources?

There certainly is probably a fine line, what some people would say, between the two. And I guess some people would probably argue that investor protection is allowing them to have choice. So they have the information they feel like they need to know in order to choose their investments wisely.

A part of this rule is, of course, climate related risk. So it’s asking companies to describe clearly what are their risks from climate change? So what are the transition risks? What are the physical risks? But the level of detail that the rule is requiring for companies, the information that they’re requiring —not sure that your average investor is looking for this level of detail. Some people are saying it may add 20, 30 pages more to a 10K or annual report.

But is it relevant for a software company? And you’re putting all these costs on a software company. They can’t just check N/A, not applicable, right? They have to give the same disclosures,

Right. They’re going to have to provide their scope one and scope two disclosures. And that’s something that may be up for challenge. So all registered companies would have to give scope one and scope two disclosures, regardless of whether they’re material or not, which the SEC’s rules tend to be grounded in the Supreme Court’s definition of materiality. And that could be a question mark for certain parts of this rule.

So aside from climate, what areas do you see the SEC delving into in the future? Clearly the antitrust agencies are very focused on labor and employment and small business. Do you see any rulemaking by the SEC for disclosure in those areas or advancing those objectives?

Yes. So, one of the rules that’s on their agenda, which they haven’t proposed a rule yet, is more disclosure on human capital management. So that’s of course, all about labor. They will likely require more details about workforce turnover. How many part-time/full-time employees, how are you training your employees? What is their compensation and benefits? So that’s definitely an area that some people may say goes further than what the SEC has done has done in the past.

How many pages of disclosure will that add?

It’s definitely not like climate, but I would say that you may be able to do that in about a page.

But, Maria, same question for you. What areas do you see the antitrust agencies maybe dipping their toe into, particularly the FTC with a third Democratic commissioner? Anything beyond labor employment, small business, where you see they might be heading?

I think that the main focus of Congress and the FTC is on these platforms. So it’s not necessarily thematic, but rather industry-focused. Big tech, basically companies like Google, Apple, Facebook, Amazon, and maybe doing some targeted rulemaking or even legislation to curb the influence and power of these four companies or other large tech firms that have platform-based business.

How do you view the prospects for legislation?

So earlier in this administration, there were many, many bills being proposed by both Democrats and Republicans. And there was at least a perception of a swell of bipartisan support for antitrust reform in some form, even on the large scale potentially. And the bills ran the spectrum from changing the legal standard to make it easier for the agencies to challenge deals, to banning mergers of a certain size, or even banning all mergers, increasing funding for the agencies, and then more targeted legislation that would pertain to big tech platforms, the companies I mentioned.

I think that what’s happened is that Republican support for some of this has waned. And there’s a sense that maybe it’s going too far. and we saw that really with the opposition to Bedoya. And then on top of that, there’s all these other priorities, the Ukraine, ongoing COVID, of course, and even recently the leaked draft opinion overturning Roe vs Wade — that’s getting a lot of attention.

And with the midterms coming up, I think the closer we get to the midterms and the more issues that are out there continuing to eclipse antitrust, the chances of something game-changing being passed would seem to be less and less. But there’s always the possibility, I think, that something more targeted could make its way into other legislation. Again, I think the chances of sweeping antitrust reform — the prospects of that don’t look very good right now.

And how about on the SEC side, any legislation you think is possible, probable in this administration that might affect the SEC’s mandate and the scope of what we’re seeing from the SEC?

So right now you have the president and both houses of Congress are all controlled by the Democrats. I would say there’s probably not a need for Congress to feel like they need to propose legislation in order for the SEC to do certain things.

But giving them more money is one thing, and that’s helpful.

Yeah. That that’s helpful. But I would say we should watch and see what happens with the midterm elections and, if Congress shifts, because if that happens, those purse strings that I mentioned earlier can have riders on them where Congress says, “We’ll give you the money, but guess what? You can’t do certain things.” So in the past Congress’s rider has said, “You can’t pass, for example, anything related to any disclosure rules related to political spending.” So we’ll have to watch and see if Congress imposes something like that, where maybe they say, “We’ll give you the money, but you can’t proceed on climate rules.”

Interesting space to watch. Maria, Raquel, thank you very much. I think this has been a great discussion and look forward to continuing it.

Thanks for having us, Ann Beth, really enjoyed it.

Thank you for joining us for today’s episode of The Informed Board. If you like what you’re hearing, be sure to subscribe in your favorite podcast app so you don’t miss any future conversations. Additional information about Skadden can be found at skadden.com. The Informed Board is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates. This podcast is provided for educational and informational purposes only, and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.