Many Americans are still in shock because our worst fears just came true: European regulators fined an American Big Tech firm a whopping one half of one percent of its annual revenue for violating some kind of “law.” To add insult to injury, radical American enforcers slipped loose from the adult supervision of the defense bar and have filed a volley of their own vindictive lawsuits over the last several years.
Sadly, the onslaught is taking a toll: to staff all of the new investigations, some dominant firms are now likely making do with outside counsel who bill under $2,600 an hour. This translates into skimpy and unimaginative legal defenses.
But protecting our national champions requires more than just copy-pasting now standard unconstitutionality defenses—which often foreshadow separate lawsuits alleging that the FTC’s commissioners and its administrative law judges are unconstitutionally protected from removal by the president—to see what sticks. That’s why we’ve painstakingly curated the following antitrust affirmative defense starter pack for cost-conscious in-house counsel. In giddy anticipation of a coming merger wave unleashed by lax federal antitrust enforcement, there’s no better time to throw merit to the wind and dissolve an enforcement agency or two altogether.
DEFENDANT’S AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
(Statute of Limitations / Laches)
The FTC’s claims are barred, in whole or in part, by the fact that we hid evidence from them during the initial merger review process.
SECOND AFFIRMATIVE DEFENSE
(Separation of Norms)
This is not how enforcers did things in the four decades from the day Robert Bork founded the field of antitrust law up until those mean hipsters took over.
THIRD AFFIRMATIVE DEFENSE
(Non-Delegation Doctrine)
The FTC jeopardizes American liberty by delegating this case to lawyers. Only economists steeped in the hard science of cost-benefit analysis can be entrusted with first-chairing trials in this area of the law.
FOURTH AFFIRMATIVE DEFENSE
(Exceeding Hidden Statutory Vibes)
Although to the casual eye, the statute does not literally recite the words “consumer welfare standard,” we reserve the right to submit a supplemental expert microscopy report showing fine graphitic indentations consistent with that phrase on an original paper copy preserved by Robert Bork, Junior. In any event, the claims alleged in the Complaint impermissibly exceed the statute’s inherent vibes.
FIFTH AFFIRMATIVE DEFENSE
(Extratemporal Application of Old Law)
Only precedent dating after the New Deal era is valid, binding law. Accordingly, Brown Shoe (1962) has expired. But old cases that we like still remain valid. So Marbury v. Madison (1803) and that case declaring the exploitation of bakers to be the foundation of American free enterprise (1905) are still good law.
SIXTH AFFIRMATIVE DEFENSE
(Procompetitive Kickbacks)
Bribing our competitors not to compete could, hypothetically, set in motion a chain of events that precipitates world peace. Such procompetitive justifications benefit competition, consumers, sellers, and Mars colonizers alike.
SEVENTH AFFIRMATIVE DEFENSE
(Linguistic Existentialism)
Purported legal standards comprised of meaning-contestable units of language—also known as “words” and “phrases”—violate the Constitution. (Actually, the more Defendant thinks about it, the more Defendant suspects that Defendant’s own “separation of powers” and “non-delegation” doctrines might be void for vagueness and lack intelligible limiting principles. But no matter! That’s why Defendant splurged on the premium “kitchen sink level” affirmative defense package. Ultimately, Defendant is just happy to force federal enforcers to divert scarce resources to defending their very existence).
EIGHTH AFFIRMATIVE DEFENSE
(Hypothetical Monomaniacal Enforcer Test)
The FTC Chair flunks the recusal test we invented for the purpose of flunking enforcers. (We commend certain other Commissioners for preemptively recusing themselves despite the lack of any discernable conflict, and for delegating their authority to economist Mark Israel instead). In any event, our lobbyists are confident that the new Congress will ensure that the act of writing law review articles not commissioned by us will be punishable by deportation and disbarment.
NINTH AFFIRMATIVE DEFENSE
(Branch Errata)
Congress itself was probably just a typo, and must be dissolved to liberate the juristocracy.
TENTH AFFIRMATIVE DEFENSE
(Walker Doctrine)
We only destroyed millions of incriminating communications because California State Bar Member No. 122945 told us to. The “Communicate with Care” policy exemplifies the creative brilliance that Kent Walker brings to his job when advising lawmakers how to write their AI laws. Thus, barring Walker from the remedies phase of this case and from our public affairs efforts would harm innovation.
ELEVENTH AFFIRMATIVE DEFENSE
(No Authority to Proceed in Court)
The FTC lacks authority to pursue the claims alleged and relief sought in district court, because an agency intern once browsed the Terms of Service of Defendant’s parent company’s accountant’s app, which mandates arbitration of all claims. Failing to uphold this freedom of contract would violate the Fourteenth Amendment.
TWELFTH AFFIRMATIVE DEFENSE
(Big Escrow Check)
We reserve our right to reneg on the jury trial we demanded by writing an escrow check that is larger than the entire combined budget of all federal antitrust enforcers and waving it in their faces during voir dire.
THIRTEENTH AFFIRMATIVE DEFENSE
(Defamation)
Filing lawsuits against lawbreakers is mean and irreparably hurts our corporate feelings.
FOURTEENTH AFFIRMATIVE DEFENSE
(Rule 11/Twiqbal Immunity)
Rules about heightened pleading standards and minimum factual and legal bases for taking positions in court apply only to Plaintiffs, not Defendants, silly. (Unless we’re the Plaintiff).
FIFTEENTH AFFIRMATIVE DEFENSE
(Swimming Test, Pricking Test, Spectral Evidence)
Lina Khan is probably a witch (but we can’t know for sure until we subject her to the standard tests).
SIXTEENTH AFFIRMATIVE DEFENSE
(The Reverse Hostage Doctrine)
We’re not trapped in this lawsuit with Lina Khan; Lina Khan is trapped in this lawsuit with us. In fact, we’ll amend our counterclaims to name Lina in her personal capacity when she is replaced as Chair. This is a fight to the death.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Wrong Enforcer Doctrine)
What, Jonathan Kanter filed this lawsuit?
Not Lina Khan?
Fine, then: Defendant admits that AAG Kanter knows the secret biglaw partner handshake, so we hereby stipulate to dismissal of the previous defenses, without prejudice. (We reserve all rights if later discovery reveals that an immigrant woman of color stole Kanter’s CM/ECF electronic filing credentials).
EIGHTEENTH AFFIRMATIVE DEFENSE
(South Pacific Doctrine)
Gonna wash that Part III adjudication right out of our hair.
NINETHEENTH AFFIRMATIVE DEFENSE
(Post-Election Enforcement)
Insofar as the current administration made antitrust “political” for the first time ever, thereby violating our due process rights, Defendant respectfully requests an immediate return to objective economic standards. Our experts have calculated that January 20, 2025 is the most economically auspicious day to drop all pending cases, and we reserve the right to file a motion in limine to enjoin any references to “Inauguration Day” as politicized and unprofessional.
TWENTIETH AFFIRMATIVE DEFENSE
(The Consumer Welfare Standard is Back, Baby)
Not that it ever went anywhere. The radical enforcers both cruelly took it away and never deviated from it. And we all agree on exactly what this objective and easily administrable test means, which is: we know it when we see it. Kind of like that other famous legal test…
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Everyone Hates Matt Gaetz)
We applaud the incoming administration for rethinking its decision to nominate an Attorney General whose private indiscretions do not meet the bar for our moral standards. Our jubilation has nothing to do his obvious bias in favor of enforcing antitrust laws or the fact that his successor’s law firm lobbied for us.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(State Ambush)
Allowing Plaintiff States to continue vigorous enforcement even after federal enforcers diverge in their efforts would be a shocking due process violation.
How could Defendant have known or prepared for this possibility, without any notice other than the listing of 38 distinct signature blocks on every filing as well as active State participation in every meet and confer session, deposition, and hearing for three years? Champagne-swilling Federalist Society boomers assure us that this kind of wanton federalism violates the unitary executive doctrine.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Denial)
This can’t be happening. Is Thomas on vacation? Did we dial the wrong yacht?
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Bargaining)
What if we agreed to probation overseen by the esteemed Commissioner Melissa Holyoak instead? Under the vigilant watch of such a fearsome enforcer, we might even be willing to pay a fine of three quarters of one percent of our annual revenue.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Acceptance)
Okay fine, we admit that the few hot docs we forgot to destroy mean what they say. But we are still going to take this all the way to the Supreme Court—and then file a motion for relief from the judgment at the district court even after our petition for cert is denied. (Turns out we’re not very good at acceptance, and we had pocket change to spare on rolling the dice).
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Infinite Placeholder)
Whatever we come up with later, we were retroactively asserting all along, because we have always been at war against Oceania.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Almost Forgot: Failure to State a Claim)
The FTC’s causes of action fail to state a claim upon which relief can be granted.
Laurel Kilgour is a law and policy wrangler. The views expressed herein do not represent the views or sense of humor of the author’s employers or clients, past or present. This is not legal advice about any particular legal situation. Void where prohibited.