By Jeffrey May, J.D.
The deputy assistant attorney generals (DAAGs) at the Department of Justice Antitrust Division kicked off the 66th annual American Bar Association Section of Antitrust Law Spring Meeting this morning, discussing some of the changes that have been taking place at the agency during the past year. Andrew C. Finch, Bernard A. Nigro, Roger P. Alford, Luke M. Froeb, and Marvin N. Price were on the dais. Donald G. Kempf, however, was unable to attend due to the ongoing trial over AT&T, Inc.’s proposed acquisition of Time Warner, Inc. Also today, the Antitrust Division released its Spring 2018 Update, highlighting many of the changes and enforcement actions discussed by the panel.
Spring Meeting attendees were reminded that, while some of the Antitrust Division sections have been renamed to be more descriptive, many of the Division career staff members remain the same. Further, the changes in policy are generally at the margins. Barry Nigro noted that the Antitrust Division continues to support the consumer welfare standard and intends to enforce the antitrust laws vigorously, even though some had thought that the agency would not.
Of course, there are new priorities or "improvements" at the Antitrust Division under the Trump Administration, according to the speakers. These new priorities are reflected in changes to consent decree processes and procedures, expansions to the appellate and amicus programs, and new ideas in criminal, international, and intellectual property enforcement.
Consent decrees and remedies. The Antitrust Division is looking to reduce unnecessary regulatory burdens. As a result, it is working to terminate old consent decrees that are no longer necessary. It also is working to ensure compliance with consent decrees in new cases, according to Nigro. To address compliance enforcement, the Antitrust Division has begun adding provisions to consent decrees so that, should the government move for contempt as a result of a defendant’s violation of a settlement, it would face only a contracted-for preponderance of the evidence standard, instead of a clear and convincing evidence standard. In addition, new consent decrees feature fee-shifting provisions that require defendants to reimburse the government for fees and expenses spent in enforcement.
Appellate, amicus program. The Antitrust Division also is investing more in its amicus and appellate programs and not waiting for cases to come to the Supreme Court to get involved. The agency is trying to get involved in the cases earlier and is inviting litigants to contact the agency.
Criminal enforcement. Price, the acting DAAG for criminal enforcement, discussed efforts to obtain redress for cartels impacting the federal government. He noted a two-pronged approach: (1) obtaining restitution from criminals; and (2) allowing federal agencies to recover treble damages under the Clayton Act. Leniency applicants were reassured that, if they were successful in receiving amnesty, they would remain subject only to single damages, and these efforts to recover treble damages on behalf of federal agencies would not have an impact.
International enforcement. There also appears to be a renewed commitment to international engagement at the Antitrust Division. This is a new priority for Assistant Attorney General Makan Delrahim, and the agency is hiring more staff. Alford said that in his lengthy travels since becoming the DAAG for international matters he has seen solid relationships with foreign counterparts. Since last year, the Antitrust Division has cooperated with 16 international counterparts on 19 different civil cases, Alford remarked. He also noted the important work that the Antitrust Division is doing in reaching trade deals with other countries.
Intellectual property. The intersection of antitrust and IP is another priority for Delrahim, according to the panelists. There appears to be a policy shift in this area, particularly with respect to standard setting, standard essential patents (SEPs), and violations of fair, reasonable, and non-discriminatory or FRAND licensing commitments. In the past, the Antitrust Division has been focused on the "hold-up," said Froeb, DAAG for economics. The Antitrust Division is now looking for greater symmetry between IP holders and implementers. Froeb warned that you cannot just look at the implementer’s problem or the "hold-up." You also need to focus on patent "hold-out" by SEP implementers. These changes in the approach to IP/antitrust enforcement and other areas are reflected in recent speeches by Delrahim and his deputies, it was noted.
Cooperation with FTC. The panel also highlighted cooperation with the other federal antitrust agency. Finch, the principal DAAG, said that he was looking forward to working with the new slate of commissioners at the FTC. He added that he foresees a close and positive relationship, just as there is now.
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