Loper Bright and Antitrust: Limited Impact on Enforcement, But a Clear Constraint on FTC Rulemaking

Antitrust attorneys David Kully and Kenneth Racowski co-authored with litigation attorney Lynn Calkins an article for Competition Policy International (CPI) forecasting what a post-Loper Bright antitrust enforcement landscape could look like. The June 2024 decision from the U.S. Supreme Court overturning the Chevron deference doctrine carries major implications, leaving federal administrative agencies vulnerable to legal challenges of their statutory interpretations and regulations. However, the authors explain, the decision will have less of an impact on federal antitrust enforcement agencies – the Antitrust Division of the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) – because they act primarily through law enforcement actions that do not receive Chevron deference. This article delves into the area where Loper Bright's effects will be felt, FTC rulemaking, noting that the case has already been cited in suits challenging the FTC's non-compete ban. It also outlines how other enforcement actions brought under the Sherman Act, Clayton Act and FTC Act will remain largely unaffected.

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