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Division Update Spring 2011

Competition Advocacy and Policy

Antitrust Division Emphasizes Importance of Markets and Competition

One of the Antitrust Division’s key roles is to act as an advocate for competition. Indeed, promoting competition principles through broad advocacy efforts and outreach is among the Antitrust Division’s highest priorities. The Division pursues competition advocacy on a number of fronts, including working with other executive branch components, providing testimony or comments on Federal and state legislation and regulations, consulting with Federal and state agencies, filing amicus briefs with the Supreme Court and appellate courts, issuing competitive impact statements to explain the reasoning and competitive analysis underlying its consent decrees, and working with international competition agencies and foreign authorities. Through these efforts, the Division strives to increase awareness and understanding of the importance of competition and healthy markets among both Federal and state governments and regulators, the courts, the business community, and international jurisdictions.

Assistant Attorney General Christine Varney, Attorney General Eric Holder, and Agriculture Secretary Tom Vilsack wrap up the historic USDA/DOJ workshops in Washington, D.C., December 8, 2010.

(L-R) Assistant Attorney General Christine Varney, Attorney General Eric Holder, and Agriculture Secretary Tom Vilsack wrap up the historic USDA/DOJ workshops in Washington, D.C., December 8, 2010.

The Division works actively with a broad range of Federal and state agencies to promote competition principles across a number of industries. For example, over the past year, the Division collaborated with the U.S. Department of Agriculture (USDA) to sponsor a series of public outreach workshops on competition in the agriculture industry. The first of these workshops was held in March 2010 in Iowa, and additional workshops were held in Alabama, Wisconsin, Colorado, and Washington, D.C. Topics included the seed, hog, livestock, poultry, and dairy sectors. More than 4,000 people attended the workshops and the Division received more than 18,000 public comments as part of the process. The Division also has joined with the USDA and the Department of Justice’s Civil Division to form the Agricultural Enforcement Joint Task Force to formalize the interagency cooperation initiated during the workshops.

On the intellectual property front, the Division has been working closely with the Patent and Trademark Office (PTO) on issues relating to the intersection between patent law and antitrust principles. In May, the Division hosted, with the Federal Trade Commission (FTC) and PTO, a one-day workshop on these issues and on the broader relationship between intellectual property and antitrust.

In health care, the Division has worked closely with the FTC, Department of Health and Human Services, and other Federal agencies, to ensure that competition policy will help guide health care reform, encouraging innovation in health care delivery systems while preserving competitive markets. As part of this effort, the Division also is working with the Center for Medicare and Medicaid Innovation and its parent entity, the Centers for Medicare and Medicaid Services, to ensure that the creation of Accountable Care Organizations or other innovative health care delivery systems does not result in price fixing or anticompetitive consolidation. 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.

In the telecommunications area, the Division filed comments in January 2010 with the Federal Communications Commission on its national broadband plan, explaining how best to promote competition in broadband markets. And in the financial services sector, the Division recently filed comments on rules proposed by the Securities and Exchange Commission and Commodity Futures Trading Commission regarding implementation of the derivatives title of the Dodd-Frank financial reform law. The Division also continues to collaborate with the Federal Reserve, Federal Deposit Insurance Corporation, and other banking regulators in analyzing mergers and competition issues in the financial services sector.

Another central piece of the Division’s competition advocacy program is filing amicus briefs in important antitrust cases. In the past year, the Division has filed briefs in a number of appellate cases dealing with antitrust issues, including a brief supporting rehearing In Banc for an important Second Circuit case involving a “reverse-payment” pharmaceutical patent settlement. Amicus briefs provide a valuable opportunity for the Division to offer courts the benefit of the Division’s specialized knowledge and expertise. These briefs also increase public transparency by informing the business community and antitrust counselors about the Division’s approach to key antitrust and competition issues.

A third key competition advocacy initiative the Division will continue to pursue is releasing detailed competitive impact statements with its consent decrees. These statements allow the Division to illustrate its general approach to antitrust analysis and to share a detailed explanation of its conclusions in specific cases. This type of transparency has many benefits, including educating courts and the broader business community on the Division’s approach to competition analysis. Among the significant matters in which the Division recently has filed detailed competitive impact statements are the Comcast/NBC merger and the Sherman Act section one case against Visa and MasterCard.

In addition to its domestic advocacy efforts, the Division works with international competition agencies, like the Organization for Economic Cooperation and Development (OECD) and International Competition Network, as well as foreign antitrust enforcement agencies, to promote best practices in competition and antitrust law and to increase policy convergence across the globe. These efforts include participating in international workshops on a broad range of policy issues. For example, in May, Division personnel participated in the World Intellectual Property Organization’s opening symposium on competition concerns relating to intellectual property rights. In October, the Division and the FTC, with the assistance of the Office of the U.S. Trade Representative and the Commerce Department, presented a two-day intellectual property and antitrust seminar for the Chinese National Development and Reform Commission. In December, Division personnel participated in a similar training session for Chinese antitrust enforcers from the State Administration of Industry and Commerce. The Division also contributes to guidance documents like the OECD’s Competition Assessment Toolkit, which provides a framework for governments to evaluate their laws and regulations from a competition standpoint. Further, the Division consults bilaterally with a range of foreign jurisdictions on issues like adopting new antitrust laws, drafting merger guidelines, intellectual property licensing, and cooperating on international investigations and enforcement actions. These efforts have contributed to increased international convergence around sound competition principles and more consistent antitrust enforcement around the world.

The Division strongly believes that robust competition advocacy is a critical component of its mission to protect and promote competition on behalf of American consumers. Accordingly, the Division will continue to work with Federal and state agencies, file amicus briefs, issue detailed competitive impact statements, work with international agencies and foreign competition authorities, and pursue other fruitful avenues for competition advocacy. The Division believes that these efforts will do much to increase awareness of important antitrust and competition issues and to promote healthy, competitive markets at home and around the world.

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