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Gibson Dunn lawyers stand ready to assist clients in navigating through these changes and uncertainty. We will continue to closely monitor BIS’s actions in 2025 to assess the evolution of U.S. export control policy and enforcement.

The Bureau of Industry and Security (BIS) held its annual Update Conference on Export Controls and Policy from Tuesday, March 18 to Thursday, March 20, 2025, in Washington, D.C. This year’s conference was notable in that it was the first time Commerce Secretary Howard Lutnick has spoken at length about export controls and export enforcement. His remarks, and those of other BIS personnel at the conference, hit two recurring themes: (1) a ramp-up in BIS enforcement; and (2) a heightened focus on China.

A. Enforcement Ramp-Up

Secretary Lutnick set a firm tone in his opening remarks by declaring that BIS was on the “intellectual frontline” of an era of “reemerging great power conflict.” He indicated that the new administration would take an aggressive approach to those who sought to profit by selling sensitive technologies to U.S. adversaries and would seek “a dramatic increase” in enforcement and fines for those it identifies as having violated the Export Administration Regulations (EAR). BIS enforcement leadership in subsequent panels emphasized that they are prioritizing investigations related to quantum computing, artificial intelligence (AI), hypersonics, and semiconductors as well as military and intelligence end uses and users.

Officials classified the acquisition of these technologies and related goods by China and Iran as significant threats to the United States and described them as top enforcement priorities. BIS leaders echoed Secretary Lutnick’s emphasis on China and promised to use export enforcement to support the administration’s “maximum pressure“ campaign on Iran, prioritizing cooperation with the Department of Justice to prosecute diversions destined for Iran.

In addition to China and Iran, BIS officials noted that Russia remains an enforcement focus, specifically highlighting diversion networks based in Hong Kong and China that have funneled controlled items to Russia for use on Ukraine battlefields. One BIS enforcement official said that “BIS is working at 100 miles an hour” to counter Russia. At the same time, representatives from BIS—as well as from the Departments of State, Defense, and Treasury—made little mention of concrete plans to enforce against Russia-related export control violators in 2025, perhaps due to the uncertainty around ongoing, U.S.-mediated peace talks between Russia and Ukraine.

BIS officials also explained how export enforcement could be used to support the administration’s policy priorities, such as stopping the flow of fentanyl into the United States. Indeed, BIS staff noted that the enormous harm inflicted by fentanyl could potentially justify its eventual designation as a controlled chemical weapon.

BIS staff also highlighted that they were deploying new tools for enforcing export controls. For example, since July 2024, BIS has begun adding addresses with high diversion risk to the Entity List and has listed additional red flags to address the diversion of advanced technology goods. And, for the first time, all foreign parties to BIS license applications are now vetted against intelligence data, allowing a more robust review of transaction parties. Finally, officials stressed the continued importance of multilateral enforcement efforts, a message which was echoed by conference attendees and panelists representing partner governments including the EU, Japan, South Korea, the UK, Canada, Australia, and New Zealand.

B. Focus on China as a Priority for Regulation and Enforcement

China featured prominently at the conference. In the opening plenary, Secretary Lutnick cited the recent success of China’s artificial intelligence model, DeepSeek, as evidence of China’s continued efforts to evade U.S. export controls and use U.S.-made chips to power its AI technology. He also raised concerns about the growing influence of Chinese capital, noting a substantial Chinese presence at both ends—and along the span—of the Panama Canal.

Secretary Lutnick signaled an escalation in export enforcement as part of the U.S. response to the perceived threat from China. Though the Biden administration already oversaw aggressive enforcement of export controls against China—as highlighted by a record-setting fine for alleged violations of the Huawei foreign direct product rule—Lutnick called for a concerted effort to fight against the possibility of what he described as “a controlled communist future.” He urged industry to be “eyes and ears for BIS” in detecting and disrupting export control violations.

In subsequent panels, BIS officials noted China’s sharp increase in military spending directed toward the People’s Liberation Army (PLA), warning of China’s publicly stated goal of achieving military modernization by 2027. These military investments extend beyond traditional armaments to encompass intelligent warfare, AI, quantum computing, and other advanced tech—reaching every level of war to facilitate rapid mobilization. Officials also pointed to China’s broader strategy of “military-civil fusion,” a state-driven initiative that integrates military and civilian capabilities, significantly bolstering the development of a self-reliant defense industry.

In connection with China’s military modernization efforts, BIS officials pointed to China’s ongoing diversion activities aimed at advancing its own defense capabilities while contributing to the industrial base of China-friendly states such as Russia. Officials flagged that China continues to leverage Hong Kong as a convenient diversion hub to route controlled items through shell companies to destinations including Russia, Iran, and North Korea. Officials indicated that addressing diversion risks remains a priority, with continued efforts underway.

Conclusion

Secretary Lutnick and many BIS and other U.S. agency officials have now heralded a new era of aggressive, extraterritorial export enforcement to achieve U.S. national security objectives. China was once again the headliner adversary at the conference, with much of the conference focused on the myriad threats to U.S. critical technology leadership posed by China-related diversion efforts. How BIS’s expanded and assertive approach to export controls and enforcement will be implemented, however, remains an open question. Gibson Dunn lawyers stand ready to assist clients in navigating through these changes and uncertainty. We will continue to closely monitor BIS’s actions in 2025 to assess the evolution of U.S. export control policy and enforcement.

The following Gibson Dunn lawyers prepared this update: Adam M. Smith, Matthew Axelrod, Christoper Timura, Audi Syarief, Justin duRivage, Zach Kosbie, Hui Fang, and Karsten Ball.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. For additional information about how we may assist you, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or the following leaders and members of the firm’s Sanctions & Export Enforcement and International Trade Advisory & Enforcement practice groups:

United States:
Matthew S. Axelrod – Co-Chair, Washington, D.C. (+1 202.955.8517, maxelrod@gibsondunn.com)
Adam M. Smith – Co-Chair, Washington, D.C. (+1 202.887.3547, asmith@gibsondunn.com)
Ronald Kirk – Dallas (+1 214.698.3295, rkirk@gibsondunn.com)
Stephenie Gosnell Handler – Washington, D.C. (+1 202.955.8510, shandler@gibsondunn.com)
Donald Harrison – Washington, D.C. (+1 202.955.8560, dharrison@gibsondunn.com)
Christopher T. Timura – Washington, D.C. (+1 202.887.3690, ctimura@gibsondunn.com)
David P. Burns – Washington, D.C. (+1 202.887.3786, dburns@gibsondunn.com)
Nicola T. Hanna – Los Angeles (+1 213.229.7269, nhanna@gibsondunn.com)
Courtney M. Brown – Washington, D.C. (+1 202.955.8685, cmbrown@gibsondunn.com)
Amanda H. Neely – Washington, D.C. (+1 202.777.9566, aneely@gibsondunn.com)
Samantha Sewall – Washington, D.C. (+1 202.887.3509, ssewall@gibsondunn.com)
Michelle A. Weinbaum – Washington, D.C. (+1 202.955.8274, mweinbaum@gibsondunn.com)
Karsten Ball – Washington, D.C. (+1 202.777.9341, kball@gibsondunn.com)
Hugh N. Danilack – Washington, D.C. (+1 202.777.9536, hdanilack@gibsondunn.com)
Mason Gauch – Houston (+1 346.718.6723, mgauch@gibsondunn.com)
Chris R. Mullen – Washington, D.C. (+1 202.955.8250, cmullen@gibsondunn.com)
Sarah L. Pongrace – New York (+1 212.351.3972, spongrace@gibsondunn.com)
Anna Searcey – Washington, D.C. (+1 202.887.3655, asearcey@gibsondunn.com)
Audi K. Syarief – Washington, D.C. (+1 202.955.8266, asyarief@gibsondunn.com)
Scott R. Toussaint – Washington, D.C. (+1 202.887.3588, stoussaint@gibsondunn.com)
Lindsay Bernsen Wardlaw – Washington, D.C. (+1 202.777.9475, lwardlaw@gibsondunn.com)
Shuo (Josh) Zhang – Washington, D.C. (+1 202.955.8270, szhang@gibsondunn.com)

Asia:
Kelly Austin – Denver/Hong Kong (+1 303.298.5980, kaustin@gibsondunn.com)
David A. Wolber – Hong Kong (+852 2214 3764, dwolber@gibsondunn.com)
Fang Xue – Beijing (+86 10 6502 8687, fxue@gibsondunn.com)
Qi Yue – Beijing (+86 10 6502 8534, qyue@gibsondunn.com)
Dharak Bhavsar – Hong Kong (+852 2214 3755, dbhavsar@gibsondunn.com)
Arnold Pun – Hong Kong (+852 2214 3838, apun@gibsondunn.com)

Europe:
Attila Borsos – Brussels (+32 2 554 72 10, aborsos@gibsondunn.com)
Patrick Doris – London (+44 207 071 4276, pdoris@gibsondunn.com)
Michelle M. Kirschner – London (+44 20 7071 4212, mkirschner@gibsondunn.com)
Penny Madden KC – London (+44 20 7071 4226, pmadden@gibsondunn.com)
Irene Polieri – London (+44 20 7071 4199, ipolieri@gibsondunn.com)
Benno Schwarz – Munich (+49 89 189 33 110, bschwarz@gibsondunn.com)
Nikita Malevanny – Munich (+49 89 189 33 224, nmalevanny@gibsondunn.com)
Melina Kronester – Munich (+49 89 189 33 225, mkronester@gibsondunn.com)
Vanessa Ludwig – Frankfurt (+49 69 247 411 531, vludwig@gibsondunn.com)

Attorney Advertising: These materials were prepared for general informational purposes only based on information available at the time of publication and are not intended as, do not constitute, and should not be relied upon as, legal advice or a legal opinion on any specific facts or circumstances. Gibson Dunn (and its affiliates, attorneys, and employees) shall not have any liability in connection with any use of these materials. The sharing of these materials does not establish an attorney-client relationship with the recipient and should not be relied upon as an alternative for advice from qualified counsel. Please note that facts and circumstances may vary, and prior results do not guarantee a similar outcome.

2024 saw significant anti-corruption developments around the globe, as governments continued to ramp up domestic and extraterritorial anti-corruption enforcement against a backdrop of continued major political, economic and military developments around the world. Meanwhile, in the early days of the new Trump administration, the Department of Justice has outlined its new criminal enforcement priorities, and it remains uncertain how this will impact ongoing FCPA cases or the pipeline of future enforcement actions at the Department, and whether other enforcement agencies in the U.S. or abroad will follow suit.

This webcast explores the approach taken by regulators in the global arena in addressing these challenges and examine the trends seen in FCPA and global anti-corruption political, policy, and enforcement actions.

Anti-corruption enforcement in China has led to significant enforcement actions in state-run financial and energy sector companies, while the government has signaled its intent to focus on bribe payors with new anti-corruption amendments to its Criminal Law. China’s legislative bodies have also continued their focus on data privacy, national security, and international judicial cooperation in ways that impact efforts to conduct internal investigations or cooperate with outside enforcement agencies. The EU continues its struggle to harmonize its anti-corruption enforcement initiatives across 27 member states and is further challenged by the impact of the Russia-Ukraine war on businesses operating in the region.

2024 also saw a number of significant developments in Africa, including FCPA enforcement actions involving six African countries in sectors such as consulting, software and aviation. The past year also saw Africa-related corruption prosecutions in the UK, France and Germany, as well as domestic enforcement and anti-corruption actions taken by the African Development Bank. Finally, in recent years Latin American enforcement authorities have cooperated closely with U.S. authorities on anti-corruption enforcement matters. The challenge for 2025 and beyond will be whether the Trump Administration’s shift in anti-corruption enforcement and U.S. foreign policy in the region—underscored by recent disputes with Mexico and Colombia over tariffs, and Panama over the Panama Canal—will lead to a global pullback in anti-corruption political and enforcement efforts and reduce international cooperation on anti-corruption investigations.

MCLE CREDIT INFORMATION:

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Gibson, Dunn & Crutcher LLP certifies this activity is approved for 1.5 hours of MCLE credit by the State Bar of California in the General Category.

Gibson, Dunn & Crutcher LLP is authorized by the Solicitors Regulation Authority to provide in-house CPD training. This program is approved for CPD credit in the amount of 1.5 hours. Regulated by the Solicitors Regulation Authority (Number 324652).

California attorneys may claim self-study credit for viewing the archived webcast. No certificate of attendance is required for self-study credit.

PANELISTS:

Patrick F. Stokes is a litigation partner in the Washington, D.C. office. He is the co-chair of the Anti-Corruption and FCPA Practice Group and a member of the firm’s White Collar Defense and Investigations, National Security, Securities Enforcement, Trials, and Litigation Practice Groups. Patrick’s practice focuses on internal corporate investigations, government investigations, enforcement actions regarding corruption, securities fraud, and financial institutions fraud, and compliance reviews. He has tried more than 30 federal jury trials as first chair, including high-profile white-collar cases, and handled 16 appeals before the U.S. Court of Appeals for the Fourth Circuit.

Patrick Doris is a partner in the Dispute Resolution Group in London, where he specialises in global white-collar investigations, commercial litigation and complex compliance advisory matters. Patrick’s practice covers a wide range of disputes, including white-collar crime, internal and regulatory investigations, transnational litigation, class actions, contentious antitrust matters and administrative law challenges against governmental decision-making. Patrick handles major cross-border investigations in the fields of bribery and corruption, fraud, sanctions, money laundering, financial sector wrongdoing, antitrust, consumer protection and tax evasion.

Katharina Humphrey is a partner in Gibson Dunn’s Munich office. She advises clients in Germany and throughout Europe on a wide range of compliance and white collar crime matters. Katharina regularly represents multi-national corporations in connection with cross-border internal corporate investigations and government investigations. She has significant expertise in the areas of anti-bribery compliance – especially regarding the enforcement of German anti-corruption laws and the U.S. Foreign Corrupt Practices Act – technical compliance, as well as sanctions and anti-money-laundering compliance. She also has many years of experience in advising clients regarding the implementation and assessment of compliance management systems.

Benno Schwarz is the partner in charge of the Munich office and co-chair of the firm’s Anti-Corruption & FCPA Practice Group. He focuses on white collar defense and compliance investigations in a wide array of criminal regulatory matters. For more than 30 years, he has handled sensitive cases and investigations concerning all kinds of compliance issues, especially in an international context. Benno assists his clients in the prevention and avoidance of corruption, fraud and money laundering and in navigating economic sanctions in the corporate sector.

Oliver D. Welch is a resident partner in the Hong Kong office and a partner in the Singapore office. A Korean speaker, Oliver has extensive experience representing multi-national corporations throughout the Asia region on a wide variety of compliance and anti-corruption issues. He focuses on internal and regulatory investigations, including those involving the Foreign Corrupt Practices Act and regularly counsels clients on their anti-corruption compliance programs and controls, including the drafting of policies, procedures, and training materials designed to foster compliance with global anti-corruption laws. Oliver also frequently advises on anti-corruption due diligence in connection with corporate acquisitions, private equity investments, and other business transactions.

Ning Ning is an of counsel in Hong Kong and member of the firm’s White Collar Defense and Investigations Practice. Ning’s practice focuses on advising clients on government and internal investigations compliance counseling, and compliance due diligence matters across the Asia-Pacific region. She has represented clients before the U.S. Department of Justice and the U.S. Securities and Exchange Commission involving potential violations of the U.S. Foreign Corrupt Practices Act, securities laws, and other white collar defense matters. Ning regularly advises clients on internal investigations relating to allegations of corruption, fraud, and accounting irregularities.

Pedro G. Soto is of counsel in the Washington, D.C. office. He is a member of the White Collar Defense and Investigations group, and his practice focuses primarily on anti-corruption and fraud matters. Pedro has nearly 15 years of experience representing corporations and individuals under investigation by government authorities. He has also conducted compliance due diligence for over 100 transactions around the world. Pedro has particularly deep experience in Latin America, where he has worked on matters in more than 15 different countries. He also represents foreign governments and private claimants in significant litigation and arbitration matters.

Karthik Ashwin Thiagarajan is an of counsel in the Singapore office. He focuses on mergers and acquisitions, joint ventures and corporate restructuring matters in India and Southeast Asia. Karthik has assisted companies and investors across a variety of industries, including the information technology, fin-tech, telecommunication, logistics and consumer goods sectors. He has also advised clients on several cross-border restructuring matters in Southeast Asia. In addition to his mergers and acquisitions experience, he also advises clients on internal investigations and anti-corruption reviews in the region.

On March 20, 2025, President Trump issued an Executive Order titled, “Eliminating Waste and Saving Taxpayer Dollars by Consolidating Procurement” and accompanying Fact Sheet titled, “President Donald J. Trump Eliminates Waste and Saves Taxpayer Dollars by Consolidating Procurement.”

The Executive Order plans to “return the General Services Administration to its original purpose” of carrying out an “economical and efficient system” for core domestic procurement services for “common goods and services,” and for Government-wide acquisition contracts (GWACs) for information technology (IT). To effectuate this purpose, the Executive Order consolidates these types of procurements within the GSA. The Policy section of the Executive Order explains the Administration’s position that consolidating procurements within a single agency will eliminate waste and save money compared to the current system, under which multiple agencies and subcomponents separately carry out distinct procurements for the same types of goods and services. The Fact Sheet characterizes the Executive Order as an expansion of previous efforts to terminate or economize more than 6,000 contracts.

Common Goods and Services

By May 19, 2025, agency heads must submit to the GSA Administrator proposals “to have [GSA] conduct domestic procurement with respect to common goods and services for the agency, where permitted by law.” The Executive Order defines “common goods and services” by reference to the Office of Management and Budget (OMB)-led Category Management Leadership Council definition, which encompasses ten categories:

Facilities & Construction, including construction-related and facility-related materials and services, as well as facilities purchases and leases;
Professional Services, including business administrative services, financial services, legal services, management and advisory services, marketing, public relations, research and development, social services, and technical engineering services;
IT, including software, hardware, consulting, security, outsourcing, and telecommunications;
Medical, including drugs, pharmaceutical products, healthcare services, and medical equipment and supplies;
Transportation and Logistics, including fuels, logistics support services, non-combat motor vehicles, package delivery, transportation equipment, and “Transportation of Things;”
Industrial Products and Services, including fire, rescue, and safety environmental protection equipment; hardware and tools; installation, maintenance, and repair materials; machinery and components; oils, lubricants, and waxes; and test and measurement supplies;
Travel, including employee relocation, lodging, and passenger travel;
Security & Protection, including ammunition, protective apparel and equipment, security animals, security services, security systems, and weapons;
Human Capital, including compensation, benefits, employee relations, human capital, strategy, policy, operations planning, talent acquisition, talent development; and
Office Management, including furniture and office management products and services.

The Executive Order requires that by June 18, 2025, the Administrator must submit a “comprehensive plan” to OMB for the procurement of “common goods and services” across the “domestic components of the Government.”

IT GWACs

GSA currently maintains IT GWACs for solutions such as systems design, software engineering, information assurance, and enterprise architecture solutions. On its webpage dedicated to IT GWACs, GSA states that the pre-competed contracts allow agencies to procure IT solutions more efficiently and economically. Other agencies, such as National Aeronautics and Space Administration (NASA) and National Institutes of Health (NIH), also maintain their own non-GSA IT GWACs.

Under the Executive Order, the Administrator must “rationalize Government-wide indefinite delivery contract vehicles for information technology for agencies across the Government, including as part of identifying and eliminating contract duplication, redundancy, and other inefficiencies.” The Director of OMB will issue a memorandum by April 3, 2025, providing further guidance to agencies on this section of the Executive Order. By April 19, 2025, the Director of OMB will designate the Administrator as the “executive agent” for all IT GWACs. The Administrator may consult with the Director of OMB to defer or decline the designation for a particular IT GWAC “when necessary to ensure continuity of service or as otherwise appropriate.”

Implications and Open Questions

The Executive Order gives significant discretion to GSA and OMB in implementing this consolidation of the government procurement system as related to “common goods and services” and IT GWACs. But the Order and Fact Sheet also raise many questions with important implications for contractors regarding how GSA and OMB will exercise that discretion, including:

How will GSA expand the use of GWACs and assume additional procurement responsibilities in light of its current pause on new procurements and reductions in force?
What constitutes a “domestic component of the Government”? To which agencies and which offices of which agencies will this Executive Order apply?
What will happen to other IT GWACs maintained by other agencies, such as NASA’s Solutions for Enterprise-Wide Procurement (SEWP), or NIH’s CIO-SP3 vehicles?

Accordingly, the scope and extent of the impact on contracts and future procurements remain to be determined. However, contractors can likely expect additional contract disruptions, such as performance delays, stop work orders, or terminations as GSA and other agencies move to implement these requirements; the potential for fewer contract opportunities as a result of consolidation efforts; and a greater need to justify the costs and value of their contracts to government customers.

The following Gibson Dunn lawyers prepared this update: Lindsay Paulin, Dhananjay Manthripragada, Joseph West, and Katie Rubanka.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Government Contracts practice group, or the following authors and practice leaders:

Lindsay M. Paulin – Partner & Co-Chair, Government Contracts Group,
Washington, D.C. (+1 202.887.3701, lpaulin@gibsondunn.com)

Dhananjay S. Manthripragada – Partner & Co-Chair, Government Contracts Group,
Los Angeles/Washington, D.C. (+1 213.229.7366, dmanthripragada@gibsondunn.com)

Joseph D. West – Partner, Government Contracts Group,
Washington, D.C. (+1 202.955.8658, jwest@gibsondunn.com)

Katie Rubanka – Associate, Government Contracts Group,
Washington, D.C. (+1 202.777.9409, krubanka@gibsondunn.com)

In an interview with The Texas Lawbook, Stephen Hammer, a Dallas associate, discussed his first U.S. Supreme Court oral argument in Riley v. Bondi. Appointed by the Court to defend a Fourth Circuit ruling that neither party supported, he shared how his legal and military experiences shaped his approach to the case.

Read the full interview in The Texas Lawbook [PDF].

Proposals would untether California single-firm conduct standards from federal antitrust law.

As summarized in our January 15, 2025 Client Alert, the California Law Revision Commission (CLRC) has been considering changes to California’s antitrust law.[1] Earlier this year, the CLRC directed its staff to prepare specific proposals on, among other things, changes to California law to address unilateral (single-firm) anticompetitive conduct—which has historically been outside the ambit of the California Cartwright Act.[2] Yesterday, the CLRC staff proposed three options for a potential single-firm conduct provision.

The staff recommendations will now be considered by the CLRC’s commissioners, and a period of public comment is open in advance of the CLRC’s June 26, 2025 meeting at which the CLRC may select one of these three proposals to recommend for legislative adoption.[3] Gibson Dunn attorneys are monitoring these recommendations and are available to discuss the implications for your business or assist in preparing a public comment for submission to the CLRC.

Proposed Single-Firm Conduct Language

The CLRC is considering recommending a state antitrust law to reach anticompetitive acts by a single company. At the federal level, Section 2 of the Sherman Act prohibits anticompetitive monopolization and attempts to monopolize. But the CLRC is considering options that would be broader than Section 2 in a number of ways, and the staff’s recommendations seek to explicitly “untether” state competition law from federal antitrust law.[4] Indeed, in yesterday’s memo, the CLRC staff proposed that, in addition to specific language prohibiting unilateral anticompetitive conduct, for which the staff provided three options, the CLRC also consider statements of purpose which would clarify that California law is broader than federal law and would reject particular limiting principles in federal law.

As the first option, the CLRC staff recommended adding a “basic” single-firm conduct provision to the Cartwright Act that would read: “It is unlawful for a person to monopolize or monopsonize, to attempt to monopolize or monopsonize, to maintain a monopoly or monopsony, or to combine or conspire with another person to monopolize or monopsonize, in any part of trade or commerce.”[5] This option is the closest analogue to Section 2 of the Sherman Act. As a result, this proposal is the most likely to be interpreted in line with federal law. While that would minimize confusion, uncertainty, and room for novel theories of liability or inconsistent interpretations of state and federal law, the CLRC staff views this as a “significant drawback[]” based on their view that federal law is too restrictive on enforcers and plaintiffs.[6] Moreover, this proposal does differ from federal law in certain ways, including an explicit prohibitions on monopsonization to “help address” an asserted “historical underenforcement of buyer-side monopolies that impact labor, among others.”[7]

As the second option, the CLRC staff proposes an “enhanced” provision that, in addition to the above, would include an explicit prohibition on “act[ing], caus[ing], tak[ing] or direct[ing] measures, actions, or events . . . [i]n restraint of trade, or to attempt to restrain the free exercise of competition or the freedom of trade or production.”[8] This would establish a new “restraint of trade” violation for single firm actors, untethered to the acquisition or maintenance of monopoly power (as required by Section 2 of the Sherman Act), that would capture a “broad range of anticompetitive conduct that may not fall within the currently restricted scope of federal law.”[9]

As the third option, the CLRC staff propose “a clean break from existing federal [single-firm conduct] law”[10] with a prohibition on “anticompetitive exclusionary conduct,” defined as conduct that tends to “[d]iminish or create a meaningful risk of diminishing the competitive constraints imposed by the defendant’s rivals and thereby increase or create a meaningful risk of increasing the defendant’s market power” and “[d]oes not provide sufficient benefits to prevent the defendant’s trading partners from being harmed by that increased market power.”[11] This proposal would define trading partners as customers and suppliers, although the CLRC staff suggests clarifying the term to cover workers and other competitors.[12]

Finally, CLRC staff also suggest including statements of purpose as part of any recommended legislation to guide the law’s interpretation and “untether that law from federal law and certain narrow precedents.”[13] The staff proposed a number of sample purpose provisions, including statements that California antitrust law is intended to include protection for workers,[14] that California “favors the risk of over-enforcement of antitrust laws over the risk of under-enforcement,”[15] and that California antitrust law is broader than and not modeled on federal law.[16] The latter could involve language explicitly rejecting certain federal precedents, including ones allowing a company to refuse to deal with competitors,[17] raising the requirements for predatory pricing claims,[18] requiring that plaintiffs define and prove a relevant market,[19] requiring that rivals must be as efficient as the defendant,[20] and requiring a certain threshold of market share or market power before imposing liability for single firm conduct.[21]

Takeaways

The CLRC staff’s proposals—in particular, the second and third options—represent significant departures from existing law. Each would impose liability on conduct that has remained outside the ambit of California antitrust law for over a century. They also create the potential for proscribing conduct that was previously lawful under both federal and state law, expanding potential liability, encouraging investigations by the California Attorney General as well as private litigation—including class actions—in California courts, and creating uncertainty and compliance challenges for businesses, particularly those operating in multiple states.

The second and third options, which go beyond prohibiting monopolization (or monopsonization) to prohibiting unilateral “restraints of trade” or actions that risk increasing a firm’s market power, do so without requiring a threshold showing of monopoly or near-monopoly power. Indeed, some of the CLRC staff’s proposed findings and declarations explicitly reject the idea that liability requires a finding that a single firm has or may achieved market share at or above any particular threshold.[22] This would be a vast expansion of antitrust law that not only could put California’s antitrust regime in opposition to federal law but also would “threaten to discourage the competitive enthusiasm that the antitrust laws seek to promote.”[23] This also risks creating divergent interpretations of when single firm conduct violates the law and potentially subject any business – including those operating in otherwise competitive industries – to scrutiny for actions that are permissible under federal law.[24]

The third option represents the most significant departure from existing law. It appears to be centered around harm to competitors, as opposed to consumer welfare. This could incentivize litigation by disappointed rivals in cases where consumers are not harmed by, or even benefit from, a firm’s conduct.[25] Because it creates an entirely new standard, it would be particularly challenging for companies seeking to adopt compliant business practices and policies. To that end, the staff even notes that this third option “leaves some doubt as to the burdens of proof and the extent to which there is to be some application of the traditional rule of reason analytical framework” that has long been used under federal law.[26] The staff also noted the potential “difficulty,” under this standard, in “distinguishing between anticompetitive conduct, which is illegal, from competition on the merits, which is legal.”[27] For these reasons, the CLRC staff recognized that this proposal should be regarded as a “work in progress.”[28]

The CLRC must review the staff’s recommendations and subject their own recommendations to a period of public comment prior to submitting them to the legislature. Because the CLRC’s final recommendations historically have been adopted into law at a high rate,[29] companies and industry associations should think carefully about how the staff’s proposals may affect their businesses and whether to provide comments for the CLRC before the June 26, 2025 meeting at which the commissioners plan to discuss these options. Attorneys from Gibson Dunn are available to help in preparing a public comment for submission to the CLRC or to the legislature as they consider potential bills, to discuss how these proposed changes may apply to your business, or to address any other questions you may have regarding the issues discussed in this update.

[1] See Gibson Dunn, Staff of California Law Revision Commission Proposes Changes to California Antitrust Laws (Jan. 15, 2025), https://www.gibsondunn.com/staff-of-california-law-revision-commission-proposes-changes-to-california-antitrust-laws/.

[2] Minutes, Cal. L. Revision Comm’n (Jan. 23, 2025) at 4, https://www.clrc.ca.gov/pub/2025/MM25-12.pdf; Alex Wilts, California Law Revision Commission Advances Antitrust Law Study (Jan. 24, 2025), here.

[3] Memorandum, Draft Language for Single Firm Conduct Provision, Cal. L. Revision Comm’n (Mar. 24, 2025) at 1 [henceforth “SFC Options”], https://www.clrc.ca.gov/pub/2025/MM25-21.pdf.

[4] Memorandum, Initial Recommendations for ACR 95 Questions, Cal. L. Revision Comm’n (Jan. 13, 2025) at 5 [henceforth “Initial Staff Memo”].

[5] SFC Options at 2.

[6] Id. at 2-3.

[7] Id. at 2 & n.7.

[8] Id. at 4.

[9] Id. at 4.

[10] SFC Options at 5.

[11] Id. at 5.

[12] Id. at 6-7 & nn.28, 30.

[13] Id. at 3, 5, 8-14.

[14] Id. at 10.

[15] SFC Options at 11.

[16] Id. at 12.

[17] Id. at 12-13 & n.57.

[18] Id. at 12-14 & n.56.

[19] Id. at 12 & n.58.

[20] SFC Options at 13-14.

[21] Id. at 13-14 & n.61.

[22] Id. at 13-14.

[23] Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775 (“Subjecting a single firm’s every action to judicial scrutiny for reasonableness would threaten to discourage the competitive enthusiasm that the antitrust laws seek to promote.”).

[24] CLRC staff recognized as much: “generating a unique set of standards that totally rejects federal law presents a formidable drafting challenge . . . [and] could be risky and invite uncertainty, which could chill innovation and business growth.” Initial Staff Memo at 7.

[25] SFC Options at 6, 8.

[26] Id. at 6-7.

[27] Id. at 7 & n.24; see also Memorandum, Single-Firm Conduct Working Group, Cal. L. Revision Comm’n (Jan. 25, 2024) at 15, https://www.clrc.ca.gov/pub/Misc-Report/ExRpt-B750-Grp1.pdf.

[28] SFC Options at 8.

[29] Cal. L. Revision Comm’n, https://clrc.ca.gov/ (last visited Jan. 15, 2025).

The following Gibson Dunn lawyers prepared this update: Rachel S. Brass, Daniel G. Swanson, Caeli Higney, Julian Kleinbrodt, Sarah Roberts, and Gaby Candes.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this update. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following leaders and members of the firm’s Antitrust and Competition, Mergers and Acquisitions, or Private Equity practice groups in California:

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More than half of President Joe Biden’s federal appellate court appointments so far were in their 40s or younger when they joined the bench, the highest share for any modern Democratic president, a Bloomberg Law analysis shows.

Picking young judges is a way for presidents to better cement their legacy on the federal court system but can also pave the way for less experienced—and sometimes less vetted—people to secure lifetime positions, former judges and law professors said.

“There is something to be said about the wisdom that comes with a longer term of experience and practice,” said former judge Paul Watford, who was 44 when he joined the US Court of Appeals for the Ninth Circuit. “I don’t see anything good that comes from nominating people to the bench at a very young age, to be frank with you.”

Bloomberg Law’s analysis contains data from the Federal Judicial Center covering judges who received their commissions as of July 16. It shows that while the trend has varied some across administrations, the share of younger judicial picks across the courts has generally grown over time.

Less than a third of John F. Kennedy’s appointments for appellate and trial courts were turning an age younger than 50 the year they became judges, compared to nearly half of those appointed by Biden and Donald Trump, the data shows.

“Pretty much everybody thinks that the reason is that, today, presidents care much more about the ideological predilections of the people on the bench,” said Arthur Hellman, a University of Pittsburgh School of Law professor. And when a president cares about that, “you would like, as part of your legacy, to have judges ruling in that way for as long as possible,” Hellman said.

Roughly 53% of Biden appellate appointees turned 49 or younger during the year they received their commissions, and roughly 21% turned 44 or younger, the data shows.

At trial courts, about 22% of Biden appointees were under 45 when they became judges, a figure higher than recent Democratic presidents.

Biden’s move toward younger judges continues a practice championed by Trump. Nearly two-thirds of the Republican’s appellate judges were 49 or younger the year they received their commission—the highest share of any president in modern history.

But it has marked “a relatively dramatic shift from prior Democratic practice,” said John P. Collins, Jr., a law professor at George Washington University.

For comparison, roughly a quarter of Barack Obama’s circuit picks, and about 38% of Bill Clinton’s circuit judges, were under 50 when they joined the bench.

Just 5% of Obama’s appellate picks, and about 15% of his choices for district seats, were under 45.

Biden’s youngest appointments were Jamar Walker on the Richmond federal trial court and Bradley Garcia on the D.C. Circuit, who both turned 37 the year they became judges.

Trump’s youngest judge was Kathryn Mizelle, who was 33 when she joined the Middle District of Florida.

Trial Courts

Inexperience may be felt more acutely at the district court level, where judges have to make quick solo decisions on evidence presented during trials, former judges and law professors said. At the circuit court, cases are generally heard in panels of three, which allows for a more deliberative process.

Judging on trial courts is “much more about exercising judgment and discretion, where I think experience matters the most,” said Gregg Costa, a former judge on a Texas federal trial court and later on the Fifth Circuit. He was was 39 when he first joined the federal bench.

“You can’t cause damage on your own on the court of appeals. On the district court, in terms of what happens in your courtroom everyday, you’re completely unchecked,” said Costa, an Obama appointee to both courts who’s now in private practice.

Some younger district judges have already generated controversy in a short time.

Judge Aileen Cannon, a Trump appointee who joined the Southern District of Florida when she was in her late thirties, has drawn scrutiny over her handling—and recent dismissal—of criminal charges against Trump over his treatment of classified documents.

Cannon wrote in her Senate questionnaire when nominated that she had tried four cases to verdict in jury trials during her roughly seven years as a prosecutor.

And Joshua Kindred, who was 42 when he became an Alaska federal judge in 2020, recently resigned after he was found by a judiciary council to have sexually harassed his former clerk. Kindred told officials investigating the misconduct he was “overwhelmed with his job,” according to an order detailing the misconduct.

Asked about Kindred’s selection, Sen. Lisa Murkowski (R-Alaska) said this month the Trump administration “was very clear in saying they wanted judges, or they wanted nominees, who were younger.” She also noted Kindred wasn’t highly rated by the Alaska Bar Association, in part because he hadn’t practiced law long and wasn’t “as well-known amongst the broader bar.”

While someone of any age can engage in misconduct, there is a “greater risk” that younger people suddenly tasked with managing the equivalent of a “small law office” could abuse that authority, Costa said.

“With less maturity, I think there is more risk that people abuse the immense power that comes with being a federal judge,” Costa said.

Selecting younger judges can also sometimes mean there is less of a record for senators to vet, said Caroline Fredrickson, a senior fellow at the Brennan Center for Justice, a progressive nonprofit.

“You certainly could have a judge of her age who is competent and interested in following the law,” Fredrickson said, referring to Cannon. “But I think it’s harder to determine when someone is of the mind to be a pure ideologue when they have that much less of a paper trail.”

Michael Waldman, president of the Brennan Center, has called Cannon’s ruling dismissing charges against Trump a “truly radical decision.”

Other Costs

There are some benefits to selecting younger judges. It creates a deeper bench of younger people with years of experience on the bench in the event of a Supreme Court vacancy, said Collins.

Younger judges may also be more “attune to the current culture” and have more energy to handle heavy workloads, Hellman said.

Stiil, former judges said it can come at a cost.

Watford, now in private practice, hadn’t served as a judge before Obama tapped him for the nation’s largest appeals court, and he said he would’ve benefited from more years of experience as an attorney.

He recalled his first few years on the bench were “a little bit overwhelming.” In some cases he heard in his early years as judge, he “would have probably reached a different outcome” had he considered them later in his career “with more wisdom under the belt.”

Dale Ho, who was in his mid 40s when appointed by Biden to the Manhattan federal trial court last year, said at a recent bar association event that it has “been quite a learning curve.” He cited “the cadence of the job, the mechanics of the court, the expectations of litigants in areas that I don’t have a lot of experience in.”

By prioritizing age, presidents could also miss out on potential candidates with years of experience deemed too old.

“I have friends who are interested in being federal judges, and they’re like, ‘Oh, I’m 55, I’m too old now,’” Costa said. “When you’re so focused on age, and they have to be in their 40s, let’s say, you’re eliminating some incredibly talented and experienced lawyers.”

Some younger Obama-appointed judges, like Costa and Watford, have also begun to depart for corporate law firm jobs before they become eligible for retirement, undercutting any potential efforts by presidents to secure the seat for longer

“It should give presidents pause, and I think will give presidents pause, about nominating these younger people because the president wants his or her ideological legacy to extend for as long as possible,” Hellman said.

Reproduced with permission. Copyright July 24, 2024, Bloomberg Industry Group 800-372-1033 https://www.bloombergindustry.com

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