Antitrust Litigation During the Obama Administration

Antitrust Litigation During the Obama Administration

Division Update Spring 2015

Trial readiness helps the Antitrust Division achieve the best possible outcome for American consumers. Over the past six years, the Division has shown that it is ready and willing to block anticompetitive mergers and challenge anticompetitive conduct, both civil and criminal. The Division’s numerous notable successes reflect the strong litigation skills and deep talent pool that exist among the Division’s career attorneys, economists, and paralegals. These trial successes also demonstrate the value of cooperation with Attorneys General from many different states.

Trial Victories in Civil Cases

On the civil side, the Division tried and won four significant cases in the last several years. Most recently, in United States and Plaintiff States v. American Express, the district court ruled, after a seven-week trial, that American Express’s rules that prohibited merchants from steering customers to alternative credit card brands violated Section 1 of the Sherman Act. At the end of the trial, the judge described the litigation as an “extremely well prepared, well litigated, and well thought out case.”

In 2013, the Division prevailed in two high-profile trials in the technology industry. In United States and Plaintiff States v. Apple Corporation, the district court found that Apple conspired with publishers to fix the price of e-books, and ordered the appointment of an external compliance monitor to ensure that Apple did not repeat its misdeeds. And in United States v. Bazaarvoice, the Division successfully challenged the consummated merger between two of the largest suppliers of Internet ratings and review platforms, Bazaarvoice and PowerReviews. Last spring, after the district court found that the consummated merger violated Section 7 of the Clayton Act, Bazaarvoice agreed to divest all of PowerReviews assets to a new buyer, restoring choice for customers harmed by the merger.

The Division’s string of recent civil successes at trial began in 2011, in United States v. H&R Block, Inc., et al. In that case, the Division convinced the district court to block the proposed merger of two of the three major providers of tax preparation software, H&R Block and TaxAct.

Other Victories Short of Trial

The Division has also won several notable victories on the eve of trial. Sometimes the defendants abandon the field. In United States and Plaintiff States v. AT&T and T-Mobile, two of the four largest cell phone carriers in the country abandoned their merger after several months of discovery. In United States v. National CineMedia, Inc., et al., the two largest cinema advertising networks in the United States abandoned their merger a month before trial. In United States and State of Michigan v. Blue Cross Blue Shield of Michigan, the Division achieved its litigation objectives when the State of Michigan enacted laws banning the use of most-favored nation clauses that the antitrust enforcers had sued to enjoin.

In other cases, litigation led to settlements that ensured good outcomes for American consumers. In United States and State of New York v. Twin America, et al., defendants Coach USA and City Sights LLC, and their joint venture Twin America, agreed to divest all of City Sights’ Manhattan bus stop authorizations to restore the competition lost when Coach and City Sights created the Twin America joint venture. In addition, the settlement requires defendants to disgorge $7.5 million in ill-gotten profits that the defendants obtained by operating Twin America in violation of the antitrust laws. In United States v. Anheuser-Busch InBev and Grupo Modelo, defendants settled shortly after the complaint was filed, agreeing to divest Modelo’s most modern brewery and the U.S. rights to its most popular beer brands. In United States and Plaintiff States v. US Airways and American Airlines, defendants agreed, on the eve of trial, to divest take-off and landing rights at Ronald Reagan Washington National Airport and LaGuardia Airport, and certain key gate-constrained airports, including airports in Chicago, Dallas, and Los Angeles. And in United States v. eBay Inc., after the court denied its motion to dismiss, defendant eBay agreed to a settlement that prohibited it from entering, maintaining, or enforcing any anticompetitive agreements relating to employee hiring and recruiting, including any agreement that in any way prevents any person from soliciting, cold calling, recruiting, hiring, or otherwise competing for employees.

The Division’s recent litigation victories likely contributed to other parties’ decisions to abandon proposed mergers when told the Division planned to challenge their transactions. These include Flakeboard’s proposed acquisition of SierraPine, Louisiana-Pacific’s proposed acquisition of Ainsworth Lumber Co., and 3M’s proposed acquisition of Avery Dennison’s Office and Consumer Products Group. Each represents a win for American consumers, achieved without the cost of litigation.

Successful Criminal Prosecutions

The Division’s criminal prosecutors have also vigorously pursued illegal conduct, obtaining convictions after jury trials in several significant matters. In United States v. AU Optronics Corp., et al., the Division obtained convictions against AU Optronics, its U.S. subsidiary, its former president, executive vice president, and senior manager for conspiring to fix prices of LCD panels. The Division’s team also persuaded the jury to find beyond a reasonable doubt that the loss from the LCD conspiracy exceeded $500 million, leading to a $500 million corporate fine against AUO, the largest post-trial fine in history. In United States v. Ian Norris, Division prosecutors extradited Ian Norris from the United Kingdom and obtained a conviction for conspiring to obstruct justice. Norris was later sentenced to 18 months in prison.

In United States v. Andrew B. Katakis, et al., the Division obtained convictions against two real estate investors for conspiring to rig bids at public real estate foreclosure auctions in Northern California. Additional trials resulting from bid rigging at real estate foreclosure auctions are expected to begin later this year. In United States v. Gordon McDonald, et al., the Division obtained convictions against a project manager for participating in multiple bid-rigging, kickback, and fraud conspiracies at two New Jersey EPA Superfund sites. McDonald was later sentenced to 14 years in prison, the longest prison sentence ever imposed for an antitrust crime. In addition, the Division successfully extradited McDonald’s co-conspirator, who is scheduled to stand trial later this year. And in United States v. Frank Peake, the Division obtained a conviction against the chief operating officer and president of a coastal freight carrier for conspiring to fix rates and surcharges for freight transportation between the U.S. mainland and Puerto Rico. Peake was later sentenced to five years in prison.

The Division’s success likely causes some defendants to reconsider the risks of trial. During the past six years, 29 indicted defendants pleaded guilty prior to trial. These included pleas to charges for price fixing in the auto parts and air cargo industries, bid rigging at real estate foreclosure auctions in the wake of the 2008 mortgage-market crash, tax perjury, and bribery and kickback schemes involving contracting with the U.S. Department of Defense. This is in addition to numerous defendants who chose to plead guilty prior to indictment.

4 civil trial wins, 9 civil cases resolved before trial, 12 criminal trial wins, 29 indictments with at least 1 guilty plea