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Division Update Spring 2010

Competition Advocacy and Policy

Antitrust Division Emphasizes Importance of Markets and Competition

Over the past year, the Antitrust Division has stepped up its competition advocacy efforts, with various programs and initiatives directed at strengthening markets and preserving economic freedom and fairness. Indeed, promoting competition principles through broad advocacy efforts and regulatory outreach remains one of the Antitrust Division’s highest priorities. These efforts include extensive cooperation and engagement with federal agencies like the Federal Communications Commission, the Department of Agriculture, and the Department of Transportation, as well as with Congress and state agencies and legislatures. The Division also filed amicus briefs with the U.S. Supreme Court and appellate courts, issued more detailed competitive impact statements to explain the reasoning and competitive analysis underlying its consent decrees, and worked with international competition agencies as well. Through these efforts, the Division has worked to expand its toolkit for promoting economic freedom and fairness, and has sought new ways of securing efficient and well-functioning markets for American consumers.

Chief Counsel for Competition Policy and Intergovernmental Relations Gene Kimmelman, Deputy Assistant Attorney General William Cavanaugh, Economic Regulatory Section Chief Elizabeth Armington, Deputy Assistant Attorney General Philip Weiser, and Deputy Assistant Attorney General Carl Shapiro at an Antitrust Division meeting.

(L-R) Chief Counsel for Competition Policy and Intergovernmental Relations Gene Kimmelman, Deputy Assistant Attorney General William Cavanaugh, Economic Regulatory Section Chief Elizabeth Armington, Deputy Assistant Attorney General Philip Weiser, and Deputy Assistant Attorney General Carl Shapiro at an Antitrust Division meeting.

Domestic Competition Outreach

The Division works actively with a broad range of federal and state agencies to promote competition principles across a number of vitally important industries in our economy, including agriculture, telecommunications, energy, financial services, and healthcare. For example, the Division is collaborating with the U.S. Department of Agriculture to sponsor an unprecedented series of public outreach hearings on competition in the agriculture industry. The first of these hearings was held in March 2010 in Iowa and additional hearings are scheduled this year in Alabama (May 21), Wisconsin (June 25), and Colorado (August 27). Agricultural competition policy and outreach has been a high priority for the Division and the Department of Justice as a whole, with prominent speeches by Attorney General Eric Holder, Assistant Attorney General (AAG) Christine Varney, and Deputy Assistant Attorney General Phil Weiser. AAG Varney also attended a Senate Judiciary Field Hearing in Vermont with Vermont Senators Patrick Leahy and Bernie Sanders on dairy issues and a meeting with dairy farmers in New York with Senator Charles Schumer. Dairy will also be the focus of the upcoming workshop in Madison, Wisconsin.

On telecommunications, the Division submitted comments promoting competition principles with the Federal Communications Commission regarding its national broadband plan inquiry. In the energy sector, the Division, along with the Federal Trade Commission and state attorneys general, recently held an internal workshop on competition in the energy markets, which involved collaboration with representatives from the Federal Energy Regulatory Commission, the Department of Energy, and several state regulatory agencies. That workshop was part of a broader effort to coordinate with state enforcers on various matters, including both particular industries and antitrust doctrine more broadly. To that end, the Division has created a Special Counsel for State Relations and Agriculture, currently filled by Mark Tobey, the former chief of the antitrust division of the Texas Attorney General’s office.

On the intellectual property front, the Division has been working closely with the Patent and Trademark Office on issues relating to the intersection between patent law and competition principles. The Division has been working particularly closely with the Department of Transportation, especially on issues related to antitrust immunity requests for airline alliances. The Division also continues to work closely with the Federal Reserve, Federal Deposit Insurance Corporation, and other banking regulators in analyzing mergers and competition issues in the financial services markets. The Division’s competition advocacy efforts will also play an important role in healthcare as the new legislation is implemented.

Amicus Program

Another important piece of the Division’s competition advocacy program is filing amicus briefs in important antitrust cases. In the past year the Department has filed briefs in a number of cases dealing with antitrust issues, including reverse payments in patent settlements and the Google Books class action settlement, as well as the American Needle and Mac’s Shell cases currently under consideration in the U.S. Supreme Court. Such briefs provide a valuable opportunity for the Department to offer courts the benefits of the Division’s specialized competition knowledge and expertise. These briefs also increase public transparency and inform the business community and antitrust counselors about the Division’s approach to key antitrust and competition issues.

Competitive Impact Statements

A recent competition advocacy initiative the Division has and will continue to pursue is publishing detailed competitive impact statements to accompany its consent decrees. These statements are a valuable opportunity for the Division to explain its general approach to antitrust analysis and to provide 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 has recently filed detailed competitive impact statements are the Ticketmaster/Live Nation merger and the acquisition by Election Systems and Software of certain Diebold subsidiaries.

International Advocacy

In addition to its efforts domestically, the Division works with international competition agencies, like the Organisation for Economic Co-operation and Development (OECD) and International Competition Network (ICN), as well as foreign antitrust enforcement agencies, to promote best practices in competition and antitrust law and increase policy convergence across the globe. These efforts include participating in international workshops on a broad range of policy issues and contributing to guidance documents like the OECD’s recently released Competition Assessment Toolkit. The Division also 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 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, to increase awareness of important antitrust and competition issues and to protect American consumers.

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