The Antitrust Division took important steps to improve the enforceability of its consent decrees. In recent decrees that the Division has negotiated, it has included provisions under which defendants agree that the Division may establish a violation of a consent decree by a preponderance of the evidence (as opposed to by clear and convincing evidence).
These provisions also permit the United States to apply for an extension of a decree’s term if the court finds a violation of the decree; enable the Division to seek reimbursement on behalf of taxpayers for attorneys’ fees, expert fees, and costs incurred in connection with any consent decree enforcement effort; and allow the Division, after a certain number of years, to terminate the decree upon notice to the court and the defendants.
These provisions are designed to place the risk of failure on the defendants—whose merger or conduct is anticompetitive—not on the American consumer. The Division announced that, going forward, it will seek to include these provisions in its settlements of merger and civil nonmerger actions.
The Antitrust Division also announced a renewed emphasis on seeking structural relief, as opposed to regulatory behavioral conditions, to remedy anticompetitive mergers. Doing so is consistent with the Division’s broader emphasis on antitrust as law enforcement, not regulation. The Division continues to review all offers to settle, but made clear its skepticism of behavioral remedies or divestitures that only partially remedy the likely harm.