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Division Update Spring 2011

AAG Message

Christine Varney

Assistant Attorney General, Antitrust Division

Merger Enforcement

Merger enforcement remains a core priority for the Antitrust Division. The Division takes a measured approach using sound competition principles, evaluating each matter carefully, thoroughly, and in light of its particular facts. Based on this analysis, we are committed to blocking in court mergers that substantially reduce competition. One such enforcement action is the Division’s ongoing challenge to undo the merger of Dean Foods and Foremost Dairy, which recently settled requiring significant divestitures and notification of future acquisitions.

At the same time, the Division is open to tailored resolutions of competitive concerns that permit parties to proceed with parts of their transaction that do not threaten competition. Already in fiscal year 2011, the Division reached negotiated settlements in U.S. v. Comcast, U.S. v. GrafTech International LTD, and U.S. v. L.B. Foster et al. In those cases, the Division required the parties to agree to structural or behavioral remedies, or both, in order to resolve the competitive issues. The Division also is committed to quickly closing investigations of mergers that do not threaten consumer harm so as to avoid unnecessarily impeding business operations.

In August of last year, the Division joined the Federal Trade Commission to provide the business community with an accurate description of the agencies’ approach to merger review. This clear articulation and application of the Division’s analytical framework enables predictability, certainty, and efficient business behavior.

Clarity and transparency continue to be in the forefront of my mind and the Division will continue to strive for this whenever possible.

Civil Non-Merger Enforcement

The Division also is prepared to litigate cases when the facts support a lawsuit and a remedy cannot be reached. The Division has two ongoing civil non-merger matters in active litigation—U.S. v. American Express and U.S. v. Blue Cross Blue Shield of Michigan.

The Division’s civil non-merger enforcement action U.S. v. KeySpan resulted in a district court recognizing for the first time disgorgement as a civil remedy under the Sherman Act—in that case a $12 million disgorgement remedy.

Criminal Enforcement

On the criminal side, the Division continues to uncover and prosecute cartels and other collusive agreements. During fiscal year 2010, the Division filed 60 criminal cases and obtained fines in excess of roughly $550 million. In these cases, 84 corporate and individual defendants were charged. Of the individual defendants sentenced, 76 percent were sentenced to imprisonment. The average sentence was 30 months, and total jail time for all defendants was more than 26,000 days. These statistics are derived from cases brought against firms and individuals in various sectors of the economy, including: financial services; air transportation services; liquid crystal display panels; Internet services; packaged ice; environmental services; and post-Hurricane Katrina remedial work among many others. The Division’s Leniency Program was an important tool in many of these cases.

Competition Advocacy

Competition advocacy efforts expanded, covering a wide range of industries and topics, including telecommunications, financial markets, health care, agriculture, and patents, and we have led the way in innovative, cross-agency cooperation in these areas through joint agency workshops around the nation to explore these issues and determine effective tools to promote competition and a level playing field. The Division and the FTC issued a joint statement about how the agencies will enforce U.S. antitrust laws in regard to new Accountable Care Organizations (ACOs)—groups of health care providers that will collaborate under the new Affordable Care Act of 2010 to improve health care quality and reduce costs. These collaborative efforts between agencies are unprecedented, and we are committed to continuing to pursue and expand this fruitful cooperation.

I invite you to read about all of these efforts in more detail in this Update.

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