The Antitrust Division has had a busy year of competition advocacy—filing amicus briefs, hosting public roundtables, and submitting advocacy letters.
Through its expanded amicus program, the Division has advocated for sound interpretations of the antitrust laws in private antitrust actions in district courts, the courts of appeals, and the Supreme Court. In August 2018, the Division urged the Supreme Court to reverse a court of appeals decision allowing consumers to bring antitrust damages claims against Apple for monopolization of the app store. As the brief in Apple v. Pepper explains, plaintiffs’ suit for treble damages is predicated on the pass-on analysis the Supreme Court has found impermissible in Illinois Brick and Hanover Shoe. The Division filed an amicus brief in the Federal Circuit arguing that the Noerr-Pennington doctrine does not protect anticompetitive patent acquisitions from antitrust liability regardless of whether the patent acquirer engages in protected litigation activity. The Division also urged the Seventh Circuit to adopt the “no economic sense” test for unilateral refusal to deal claims under Section 2. The Division also filed an amicus brief in the Eighth Circuit regarding the proper application of the dormant Commerce Clause to a Minnesota statute that favors in-state public utilities.
The Division has also been active in private antitrust actions pending in district court, filing several statements of interest, including regarding the proper legal analysis of no-poach agreements, the application of the state action doctrine to conduct of a state bar and conduct of a state university, the standing of a party to challenge a market allocation agreement as unenforceable, and the appropriate remedies for an anticompetitive merger. The Division also advocated for competition in the provision of real estate services in an amicus brief filed in the Rhode Island Supreme Court.
Roundtable Series and Report on Competition and Deregulation
The Roundtable Discussion Series on Competition and Deregulation, which the Division hosted in 2018, provided an opportunity for the Antitrust Division to consider a wide variety of perspectives as it assesses harm to competition from many forms of regulation and considers ways to build a less regulated economy in which innovation and business can thrive, and ultimately the American consumer can benefit.
The first roundtable, held on March 14, covered Regulatory Exemptions and Immunities from the Antitrust Laws. The roundtable reflected a general consensus that, to allow greater room in the economy for competition protected by antitrust enforcement, Congress should not enact future antitrust exemptions or immunities and also should explore actively studying, sunsetting, or eliminating current statutory exemptions and immunities.
The second roundtable, held on April 26, addressed Antitrust Consent Decrees, and included an examination of the regulatory nature of many of these decrees. The timely discussion helped inform the Division’s implementation of initiatives to review and termination of nearly 1,300 “legacy” antitrust judgments and the introduction of a number of steps to improve the enforceability of its consent decrees.
The third roundtable, held on May 31, focused on The Consumer Costs of Anticompetitive Regulations, highlighted the costs to consumers of many regulations, and explored ways for regulators to minimize such costs.
Those discussions have now been memorialized in a volume that collects participants’ statements and submissions and transcripts of the roundtable discussions. U.S. Dep't of Justice, Roundtable Discussion Series on Competition & Deregulation (2018).
Public Roundtable on Criminal Antitrust Compliance
On April 9, 2018, the Division held a public roundtable discussion to explore the issue of corporate antitrust compliance and its implications for criminal antitrust enforcement policy. The roundtable provided a forum for the Antitrust Division to engage with inside and outside corporate counsel, foreign antitrust enforcers, international organization representatives, and other interested parties on the topic of antitrust compliance. As AAG Makan Delrahim expressed in his opening remarks, compliance programs build “reputations for good corporate citizens,” helps corporations “limit their legal exposure,” “promote[s] robust competition” to the benefit of consumers, and allows the Division to “conserve its scarce taxpayer resources.” In a series of panel discussions, participants addressed the role that antitrust compliance programs play in preventing and detecting antitrust violations, and ways to further promote corporate antitrust compliance.
Competition Advocacy Letters
Standards Setting: The American National Standards Institute
Along with several speeches, the Division provided advocacy to the standards setting community regarding the sound application of antitrust principles to intellectual property disputes in the standards setting context. In a March 7, 2018 letter and an October 11, 2018 letter, the Division commended efforts by the American National Standards Institute (ANSI), in designing and interpreting its patent policy for accredited standards developers (ASDs), to give patent holders and implementers the ability to determine what licensing terms are appropriate in particular standards. The Division further encouraged ANSI and ASDs to have balanced representation in decisional bodies so that diverse interests are represented and so that their decisions do not shift bargaining leverage in favor of any one particular set of interests. Lastly, the Division encouraged ANSI to promote among ASDs the flexibility to experiment and compete with one another on their policies.
Maryland Maintenance of Certification
In a September 10, 2018 letter, the Division provided competition advocacy and guidance to the Maryland state legislature with respect to professional standards setting for the medical profession. Because many medical doctors have raised concerns that the requirements to maintain specialty certification from private certifying bodies have become increasingly costly, the State of Maryland was contemplating legislation that would restrict hospitals and insurance companies from using information about a medical doctor’s maintenance of certification record. The Division encouraged the Maryland legislature to consider ways to facilitate new entry and competition by legitimate certifying bodies, while continuing to allow hospitals and insurers independently to decide whether to consider a medical doctor’s maintenance of certification record when making business decisions, such as granting hospital privileges. The Division also encouraged certifying bodies, which are frequently governed by active market participants and may have market power, to ensure that their policies promote procompetitive goals, that their standards are applied objectively, and that input is available from, and decision-making is vested in, groups that represent a balance among the various relevant stakeholders.