Antitrust and Unfair Competition Law

Competition: Spring 2021, Vol 31, No. 1


By Amy T. Brantly1 and Jennifer M. Oliver2


America’s monopolies, duopolies and oligopolies, and its citizens’ increasing reliance on their services, are drawing scrutiny at levels unseen for more than a century. Like industrial concentration, gender inequality, and especially economic inequality, is similarly a well-known cause of increasing concern in this country.

Parallels can be drawn between gender inequality and behavior from America’s dominant firms. Gender and competition policy are inextricably intertwined; persistent unjust discrimination in a concentrated market may be a by-product of market power. Dominant firms exclude new entrants from a market, whereas gender inequity and biases exclude women from full participation in the economy and workplace. Gender inequity and biases can deprive firms of the benefits of women’s diverse experiences and viewpoints, just as monopolies and their ilk can deprive consumers of the benefits of innovative new competitors.

There is correlation between these two problems as well. One problem exacerbates the other. Start by considering the roles women play in the economy as consumers, workers, and entrepreneurs.

First, women bear the brunt of anticompetitive and monopolistic behaviors in their role as consumers. Firms with market power have the ability to impose elevated prices with fewer competitive restraints. Without competition, a monopoly’s price is the market price. Even when faced with high prices, consumers often cannot substitute the monopoly’s product for a more affordable alternative. Supracompetitive pricing—the classic measure of antitrust harm—disproportionately affects women, because women drive a staggering 70-80% of all consumer purchasing in this country. 3

Women also find themselves the targets of price discrimination more often than their male counterparts, a relic of the outdated notion that women are spendthrift "shopaholics." One study conducted by the New York City Department of Consumer Affairs found that products marketed towards women and girls cost an average of 7 percent more than those marketed towards boys and men.4 Researchers have dubbed this phenomenon the "pink tax," and it is estimated to cost the average woman $1,351 per year.5

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And, as discussed below, in the labor market women are systematically underpaid compared to their male counterparts. The lower income the consumer, the more they are harmed since higher income consumers can more easily absorb monopoly rents than customers with less buying power.

Second, women workers suffer an inordinate share of monopolization’s consequences. As Senator Elizabeth Warren said during a recent conference, studies show that market consolidation "contributes to driving down wages and driving up income inequality."6 Among myriad other negative effects, concentrated market structures reduce competition in the labor markets, which leads to wage suppression. Consider, for example, the In Re High-Tech "no poach" cases, in which the Department of Justice sued Google, Apple, and others for colluding and agreeing not to recruit one another’s employees.7 This behavior is not limited to skilled employees; in the franchise no poach cases, fast food workers brought a class action case alleging that forbidding franchisees from poaching one another’s employees violated antitrust law.8 As the High-Tech case demonstrates, in concentrated markets employee mobility declines, either because there are simply fewer firms to move to, or because the small number of firms in the market facilitates collusion to suppress mobility and wages.

When employee mobility is suppressed, low-level workers have even fewer opportunities to achieve career advancement or increased pay by moving to, or threatening to move to, another firm. Again, this affects female workers more than male workers. Since the start of the COVID-19 pandemic, millions of women have lost their jobs or voluntarily left the workforce, and many of those women were low level workers without the means to hire outside help.9 The Bureau of Labor Statistics reports that 227,000 jobs were lost in December 2020, with women accounting for 196,000 of those jobs (86.3%).10 If and when these women return to the workforce, many will be entry and low-level workers.

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Likewise, when wages are suppressed, women, and especially women of color, are affected disproportionately. Women make 79 cents on the dollar compared to men in the same jobs, black women make just 62 cents, and Latina women only 54 cents.11 When wages shrink, so do women’s unequal share of the wage pool. High level executives, on the other hand, may benefit from the employee wage and mobility suppression in these concentrated markets, since lower wages and expenses associated with employee mobility drive up corporate profits. As of 2020, there are still nearly 13 American companies run by a man for every company run by a woman.12 Women of color hold an even smaller share of management roles in U.S. companies, with Latina women at just 4.3% and black women at just 4%.13

Gender inequality also distorts our view of the labor markets. More than 30 years ago economist Marilyn Waring conducted a worldwide study that found that if workers were hired to perform all the unpaid work that women perform, unpaid work would be the largest sector of the global economy.14 In 2020, the COVID-19 pandemic shed light on women’s unpaid work once again, causing some to call for stronger antitrust enforcement as a means to address outsized corporate power and address income inequality.15

Third, women entrepreneurs are disproportionately harmed by market concentration as well. While some argue that preserving consumer welfare is the singular paramount goal of American antitrust law, many others would agree that it should also seek to preserve the pathways that allow for new, efficient, innovative market entrants to compete. Monopolies are often bad for consumer welfare because, among other things, they have the power to exclude smaller firms that might otherwise contribute new, innovative, and/or less costly products to consumers.

Women entrepreneurs are even more damaged than other would-be market entrants in this regard. Overcoming the barriers to entry in a concentrated market requires cash. Yet less than 5% of startup investment goes to women,16 and the average loan for women-owned businesses is 31% less than for male-owned businesses.17

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And just as monopoly firms can raise prices with minimal consequence, they can also refuse to serve customers, which can be detrimental or fatal to the companies that rely on the monopoly’s product to survive. Consider, for example, the dominant role Facebook and Google play in the market for digital advertising, and the many small companies that rely solely on their digital advertising reach for sales leads. If the monopoly or oligopoly decides it will no longer serve market participants that are less profitable for the monopolist, those competitors are disenfranchised from participating in the market.


When market concentration proliferates, diversity and inclusion is defeated: women and other historically underrepresented groups are disproportionately affected and foreclosed from the market. It stands to reason, then, that this trend translates to the legal market in particular as well.

The market for legal services is certainly nowhere nearly as concentrated as some, for example social media. However, it has seen a significant trend toward consolidation in recent years. There were 115 law firm mergers recorded in 2019, and after a precipitous drop during the COVID-19 crisis in 2020, many believe that law firm mergers will make a roaring comeback in 2021.18

Perhaps this movement toward greater concentration is partly to blame for the abysmal statistics surrounding the advancement of women, especially in "Big Law." In 2015, a special report from The American Lawyer entitled Big Law Is Failing Women estimated that, at the current rate, gender parity in equity partners at large law firms would not be achieved until the year 2181.19 The study showed that law firms trail only investment banks and venture capital firms in the number of female leaders, coming in at just 16%.20 In 2019, the ABA reported that "while entering associate classes have been comprised of approximately 45% women for several decades, in the typical large firm, women constitute only 30% of non-equity partners and 20% of equity partners."21

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As more seasoned antitrust practitioners well-know, for years, antitrust was one of the least diverse practice areas. Finding a woman or a person of color on an antitrust trial team was difficult. In the first "Women in Antitrust Survey" in 1999, Global Competition Review ("GCR") found only 29 women around the world to profile.22 It also found that although women made up 40% of antitrust associates, only 15% of antitrust partners were women.23 The Fortune 500 tended to only hire big firms to work on antitrust cases, and historically, those big firms were dominated by white men—especially the leaders of those firms.

Current statistics show that there has been progress over the past few years, but that the progress has been minimal. According to Law 360’s latest Glass Ceiling Report, 37% of attorneys and about 25% of all partners at surveyed law firms are women.24 The Report also found that less than a quarter of equity partners at surveyed U.S. firms are women, although the percentage of women equity partners is notably higher for firms reporting with less than 100 attorneys.25 The American Bar Association’s Model Diversity Survey Report, which compiled data on law firm equity and inclusion recorded between 2017 and 2019, includes similar results.26 Data for in-house lawyers is better with 34% of Fortune 500 General Counsel spots going to women although the study only found a one percentage point increase from 2019.27

The statistics for antitrust practitioners seem to mirror the statistics for big firms generally. One 2016 study of women at large firms found that 48% of antitrust associates were women and 21% of antitrust partners were women.28 It is clear that the number of women who are antitrust partners still considerably lags behind the number of men and that women are promoted at lower rates.29 Chambers only includes six women among the top 41 antitrust practitioners in its current USA Guide Rankings.30

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Still, it is noticeable that there are more women leaders in antitrust than ever before. Two of the four FTC Commissioners are women, and it is likely that we will see some women appointed by the Biden Administration at the top of the Department of Justice Antitrust Division. Additionally, we are seeing trial teams with more women and people of color playing important roles. Today we see several women leading trial teams in high stakes litigation including in US v. Google, In re Google Play Store Antitrust Litigation, and In re Broiler Chicken Antitrust Litigation. In the most high-profile antitrust cases of 2020,31 women accounted for 23.8% of all attorneys, 18.3% of lead attorneys and 32.9% of government attorneys.32 Notably, these numbers include women representing interested parties and amici. This sample shows that more women acted as lead attorneys on government teams, especially state government, and when working for interested parties and amici. This again suggests that women are finding greater leadership opportunities representing small and mid-size businesses or the government agencies.

According to the ABA, the policies that experienced women lawyers say are effective in retaining and promoting women in big law firms are work from home (78%); paid parental leave (76%); clear consistent criteria for promotion to equity partner (75%); and a formal part-time policy for partners (75%). But as law firms consolidate, the scales tip. Employee mobility and wages are suppressed, and law firm employment becomes a "buyers’ market." Will big law firms decide to implement policies like work from home and paid parental leave when there is little competition for qualified labor?33


On February 4, 2021, Senator Amy Klobuchar (D-Minn.), now head of the Senate’s antitrust subcommittee, introduced legislation to reform the antitrust laws. Klobuchar’s bill aims to better protect competition and to deter anticompetitive exclusionary conduct that harms competition and consumers while also strengthening the ability of the Department of Justice and the Federal Trade Commission to enforce the antitrust laws.34 A large focus of the legislation is to amend Section 7 of the Clayton Act to forbid mergers that "create an appreciable risk of materially lessening competition," broadening the current standard which bans mergers that "substantially lessen competition." The bill also expressly applies the law not only to monopoly power, but also to monopsony power. Importantly, the bill adds a provision to the Clayton Act barring "exclusionary conduct" that disadvantages competitors and risks harming competition. The bill also boosts much needed funding for the Department of Justice’s Antitrust Division and the Federal Trade Commission, and empowers the agencies to seek civil monetary penalties for violations of the Sherman Act giving the law more teeth than it currently has.35 Finally, the bill establishes a new FTC division to conduct studies of markets and past mergers.

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The proposed legislation not only addresses the need for competitive markets to ensure the high quality of goods and low prices for consumers, but also addresses that "the presence and exercise of market power makes it more difficult for people in the United States to start their own businesses, depresses wages, and increases economic inequality, with particularly damaging effects in historically-disadvantaged communities."36 The legislation expressly recognizes that monopsony power allows a firm to force workers to accept below market wages and reduces opportunities for workers, and that when "dominant employers exercise market power, they harm workers by paying them low wages, reducing their benefits, and limiting their future employment opportunities."37

These reforms should directly impact all workers, but especially women and people of color who have not traditionally had positions of power in America’s dominant firms. While antitrust law has typically focused on effects on consumers, many in the profession have been thinking about how antitrust law itself can be used to promote racial and gender inclusion and equity. In her published remarks at the GCR Women in Antitrust Conference in November 2020, FTC Commissioner Rebecca Kelly Slaughter commented on how antitrust enforcers might think creatively about using existing authority to combat systemic racism and address gender inequality.38 Commissioner Slaughter noted that in September 2020 alone 865,000 women dropped out of the workforce and that a recent report found that one in four women are considering downsizing their careers or leaving the workforce as a result of the coronavirus pandemic.39 This was the first time in six years that the study found women intending to leave their jobs at higher rates than men.40 More recent statistics show that 2.5 million women have left the workforce since the beginning of the pandemic, a problem that Vice President Harris called a "national emergency."41 This mass exodus may be caused by the pandemic, but it only underscores the importance of ensuring greater gender equity in the labor market: "Women have already been climbing a mighty mountain to reach the goal of gender equity on the job and in the labor market; even as we have been making progress on that climb, the mountain has just gotten even higher."42

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Commissioner Slaughter went on the record stating that antitrust law should not be "value-neutral" because antitrust enforcement necessarily addresses fundamental economic and market structures that are historically and presently inequitable. As the Commissioner said, "when we make decisions about whether and where to enforce the law or how to deploy our enforcement resources, we are making decisions that will have an effect on structural equity or inequity."43 The legislation proposed by Senator Klobuchar and some of her colleagues echoes Commissioner Slaughter’s concerns and expressly acknowledges the effects of market power on historically-disadvantaged communities and the need for greater study and data on the effects of market concentration on wages and affected labor markets.44

Could these proposed reforms, if they become law, result in greater gender equality for women lawyers, specifically women lawyers who practice antitrust law? While some may think an affirmative response is pure speculation, it seems reasonable to think that less consolidation and more robust antitrust enforcement could and should result in increased opportunities for women lawyers.

Greater competition and less consolidation resulting from strengthened antitrust laws should lead to further progress for women antitrust lawyers as more challenges brought under Section 7 of the Clayton Act and Sections 1 and 2 of the Sherman Act open up additional opportunities. Put simply, increased litigation and merger review equates with increased opportunities.

Moreover, by preserving smaller companies from consolidation, we preserve opportunities for women lawyers to represent these companies. As smaller companies are more likely to hire lawyers from mid-size and boutique firms, it also opens up greater opportunities for mid-size and small antitrust firms. Statistics show that there is a larger percentage of women in equity partnership and in leadership at mid-size and smaller firms.45 Thus, it is more likely that women lawyers will have increased opportunities to represent these smaller businesses in lead roles. Additionally, a greater percentage of small businesses are run by women, and women business owners are more likely to hire other women including women lawyers. One recent study found that startups with at least one woman founder hire two and a half times as many women and raise more venture capital compared to start-ups exclusively founded by men.46

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A further benefit should be felt by in-house counsel. As competition increases and allows innovative small firms to thrive instead of being acquired, increased employment opportunities and pay for women should be felt by all female employees inside these smaller rivals, including women in-house counsel.

Lastly, as the DOJ and FTC expand and government enforcement is more robust, there will be more work for antitrust lawyers in general and hopefully many of these opportunities will go to women. Government agencies are already better at promoting women to senior positions than big law firms—in 2013, women made up 35% of senior staff at the FTC compared to 20% of partners in private practice. In 2019, women made up 45% of all attorneys at the DOJ and 38% of those women held senior executive positions.47 Consequently, an expansion of these agencies should result in more opportunities for women antitrust attorneys.

Is promoting gender equity through antitrust laws too ambitious—"hipster antitrust," if you will? Perhaps antitrust law is not the primary vehicle through which to achieve these goals, but recognizing that market concentration negatively affects women and people of color cannot hurt. The Competition and Antitrust Law Enforcement Reform Act of 2021, Senator Warren, Commissioner Slaughter and others, have already made this connection and are already raising awareness.

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1. Amy T. Brantly is a founding partner of Kesselman Brantly Stockinger LLP specializing in antitrust and business litigation. The views expressed herein are solely those of Ms. Brantly and are not attributed to her law firm. Ms. Brantly would like to give special thanks to Samantha Pannier who assisted in research for this article.

2. Jennifer M. Oliver is a partner at MoginRubin LLP, where she specializes in antitrust litigation and merger control work, privacy litigation, and general business litigation. Jennifer is also an officer of the CLA Privacy Section. The views expressed herein are solely Ms. Oliver’s and are not attributed to her law firm.

3. Amy Nelson, Women Drive Majority of Consumer Purchasing and It’s Time to Meet Their Needs, Inc. Magazine, (July 17, 2019),

4. New York City Department of Consumer Affairs, From Cradle to Crane: The Cost of Being a Female Consumer, A Study of Gender Pricing in New York City i (2015),

5. See Meredith Hoffman, The Pink Tax: How Women Pay More for Pink, Bankrate, Jan. 11, 2021,

6. Senator Elizabeth Warren, Speech to Open Markets at Open Markets Institute, America’s Monopoly Moment: Work, Innovation, and Control in an Age of Concentrated Power (December 6, 2017) (transcript available at 4a5ad75e2908a4ad1b85/1587759711866/EMBARGOED-Warren-Open-Markets-Speech.docx.pdf).

7. Complaint at 2, US v. Adobe Systems, No. 10-cv-01629-RBW, 2010 WL 1147874 (D.D.C. Sept. 24, 2010). The civil class case is In re High-Tech Employee Antitrust Litigation, (No. 11-cv-02509 LHK) 2011 WL 11683784 (N.D. Cal. Sept. 13, 2011).

8. See, e.g., Harris v. CJ Star, LLC, 2:18-cv-00247 (E.D. Wash. Mar. 18, 2019); Richmond v. Bergey Pullman Inc., 2:18-cv-00246 (E.D. Wash. Mar. 18, 2019); Stigar v. Dough Dough, Inc., 2:18-cv-00244 (E.D. Wash. Mar. 18, 2019).

9. Courtney Connley, Women’s Labor Force Participation Rate Hit a 33-Year Low in January, According to New Analysis, CNBC, Feb. 8, 2021,

10. Id.

11. Robin Bleiweis, Quick Facts About the Gender Wage Gap, Center for American Progress, Mar. 24, 2020, -gap/.

12. Catalyst, Women in Management: Quick Take (Aug. 11, 2020)

13. Id.

14. Marilyn Waring, If Women Counted, Harper & Rowe, 1988.

15. Diane Coyle, Why Did It Take a Pandemic to Show How Much Unpaid Work Women Do?, N.Y. Times, June 26, 2020,

16. Sally Hubbard & Washington Bytes, How Monopolies Make Gender Inequality Worse, Forbes, Dec. 20, 2017,

17. Amy Nelson, Women Drive Majority of Consumer Purchasing and It’s Time to Meet Their Needs, Inc. Magazine, July 17, 2019,

18. Emily Lever, Law Firm Merger Market to Bounce Back From 2020 Doldrums, LAW360, Jan. 5, 2021,

19. The American Lawyer, Special Report: Big Law is Failing Women, May 28, 2015; Julie Triedman, A Few Good Women, The American Lawyer, May 28, 2015,

20. Triedman, supra note 19.

21. Eric Bachman, Why Women Lawyers At Big Law Firms Are Walking Out The Door, Forbes Nov. 14, 2019, (citing Roberta Liebenberg & Stephanie Scharf, Walking out the Door: the Facts, Figures, and Future of Experienced Women Lawyers in Private Practice, American Bar Association & ALM Intelligence (2019)).

22. Rachel Brandenburger & Meghan Rissmiller, Women in Leadership: Some Observations from an Antitrust Perspective, 12 Competition L. Int’l 131, 137 (2016).

23. Id.

24. Jacqueline Bell, Law360’s Glass Ceiling Report: What You Need to Know LAW360 (October 18, 2020), The report also shows that over the last 5 years, firms have made gains on average of only 3%.

25. Id.

26. Women lead the teams for several state attorneys general, co-lead Google’s defense team, and multiple non-party petitioners. In game developers’ monopolization challenge to Apple and Google’s app store surcharges, Plaintiff’s team is led by former FTC Commissioner Christine Varney. Finally, women lead defense teams in In re Broiler Chicken Antitrust Litigation (No. 1:16-08637) (N.D. Ill. 2021).

27. Sue Reisinger, 12 Major Companies Looking to Fill GC Posts, Study Says, LAW360 (Jan. 22, 2021, 4:01 PM); see also Philip Bantz, More Minority, women General counsel at Top US Companies Than Ever Before, (Aug. 31, 2020, 3:06 PM), (noting that women account for 34% of the Fortune 1000 General Counsel population).

28. Brandenburger & Rissmiller, supra note 22, at 137.

29. Id. at 138.

30. Chambers USA Nationwide Antitrust Rankings (2020),

31. Matthew Perlman, The Biggest Rulings in Antitrust Cases of 2020, LAW360 (December 22, 2020),

32. The cases are New York et al. v. Deutsche Telekom AG, No. 1:19-cv-05434 (S.D.N.Y. Feb. 11, 2020); FTC v. Qualcomm Inc., No. 19-16122 (9th Cir. 2020); FTC v. AbbVie Inc., No. 18-2621 (3rd Cir. 2020); Comcast Corp. v. Viamedia Inc., No. 18-2852 (U.S. 2020).

33. Bachman, supra note 21.

34. Competition and Antitrust Law Enforcement Reform Act of 2021, S.___, 117th Congress (2021),

35. In her remarks at the GCR Women in Antitrust Conference in November 2020, FTC Commissioner Rebecca Kelly Slaughter noted that the FTC had roughly 50% more full-time employees at the beginning of the Reagan Administration than it does now. Rebecca Kelly Slaughter, Commissioner, Federal Trade Comm’n, Remarks of Commissioner Rebecca Kelly Slaughter at GCR Interactive: Women in Antitrust, Antitrust at a Precipice (Nov. 17, 2020) at 5,

36. Supra note 34 at 2.

37. Id. at 5-6.

38. Slaughter, supra note 35 at 3.

39. Id. at 1-2 (citing McKinsey & LeanIn.Org, Women in the Workplace 2020, 6, 9 (Sept. 30, 2020),

40. Id. at 2.

41. Women Leaving Work Force Is a ‘National Emergency,’ Harris Says, N.Y. Times (Feb. 18, 2021),

42. Supra note 35 at 2.

43. Id. at 4.

44. Supra note 35 at 16—17, 24—25.

45. Bell, supra note 24.

46. Collin West & Gopinath Sundaramurthy, Startups With at Least 1 Female Founder Hire 2.5x More Women, Kauffman Fellows (Oct. 17, 2019),; see also Dina Gerdeman, Why Employers Favor Men, Harvard business school working knowledge (Sept. 11, 2017), (finding that when women make hiring decisions equally qualified women and men candidates have an equal chance of being hired. However, when men are making hiring decisions between two equal candidates women are only hired 40% of the time).

47. Jessica Schneider & Kate Sullivan, DOJ Employees Call Out Lack of Women in Leadership Positions, CNN (Feb. 13, 2019 8:45 PM),

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