Justice Department Makes Quiet Push on Antitrust Enforcement

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The spotlight on Biden administration enforcement has focused on the FTC, but the DOJ has been far more proactive despite the long period of transition.

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Antitrust employees are stepping up investigation into business practices at Apple Inc.,

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Alphabet Inc. NS

Google (which is already facing an antitrust lawsuit from the Justice Department) and Visa Inc.

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The department’s antitrust division is also scrutinizing some high-profile pending mergers. They include a publishing industry deal in which Penguin is seeking to buy Random House’s parent company Simon & Schuster and UnitedHealth Group. Inc. NS

Planned acquisition of health care technology company Change Healthcare.

Attorney General Merrick Garland, speaking at the New Yorker Festival on Monday, described the antitrust division as “energetic and eager to move forward,” adding that the department has “everything from agriculture to banking, to real estate.” Something is involved.”

“We feel that ensuring fair competition is an essential element of our obligation to ensure justice,” he said.

The department’s work comes at a time when President Biden has prioritized promoting economic competition and checking corporate dominance. He signed an executive order in July that encouraged US agencies to adopt policies that push back industry consolidation and business practices that could stifle competition in ways that harm consumers and workers.

Some major business groups have expressed concerns that the administration’s plans are overblown and could interfere with the economy, although views are mixed, with small businesses, traders and farmers in common following efforts to make markets more open. stands by.

The lion’s share of the Justice Department’s antitrust work is being carried by carrier staff to the finish line, an unusually long period of transition to the antitrust division, which is usually headed by a Senate-confirmed political appointment. is done. However, the Biden administration didn’t announce its nominee—longtime antitrust attorney Jonathan Cantor—until July, and he got a confirmation hearing on Wednesday. It could be the end of the year before the Senate votes on it.

Antitrust staff, whether in the department or in the FTC, are oriented in favor of bringing cases, although at times they are also against bold actions that can lead to challenges in court. This year, career justice officers have been empowered by the department’s top officials to move forward when a case is made.

“We need to be prepared to bring up some tough cases—and we are,” said one official.

The department’s recent airline suit is one example. American and JetBlue, which last year agreed to begin marketing each other’s flights on certain routes, say their partnership has fueled competition in the Northeast—and they say they have the money to prove it. data for. The Justice Department says the airline’s plan to compete with stranded carriers through the partnership is actually less ambitious than American and JetBlue intend to do independently. The case is pending in Boston federal court, although no trial dates have yet been set.

In the Aon-Willis Towers case, the department refused to accept a settlement that would have allowed a deal if the companies had sold certain properties. European antitrust promoters agreed to that approach, but the Justice Department did not believe it would be sufficient to protect competition. The companies accused the department of misinterpreting the market but decided not to fight in court.

The department is separately playing an advisory role on competition issues with other government agencies, including the Surface Transportation Board, which in August relied heavily on the department’s analysis to effectively implement a proposed $30 billion rail merger. did. The Justice Department is also in charge of criminal antitrust enforcement, and there are currently about 20 pending cases that allege violations such as bid-rigging, price-pricing and employer collusion to limit competition for workers.

In the absence of the politically appointed chief, the antitrust department is being closely monitored by the office of Associate Attorney General Vanitha Gupta, the Justice Department’s No. 3 officer. In a speech at Georgetown Law School last month, he hinted at a broad antitrust-enforcement program covering sectors including agriculture, healthcare, the labor market and technology.

Andrew Finch, who served as the acting head of the antitrust division in the first months of the Trump administration, said the department’s efforts have been in line with the Biden administration’s overall antitrust approach, adding that “in many ways it’s business as usual.”

“The work of the antitrust division hasn’t slowed down, and it usually wouldn’t have happened without a certain nominee,” said Mr Finch, partner at Paul, Weiss, Rifkind, Wharton and Garrison. “I expect them to continue doing what they’re doing.”

Some of the department’s current portfolio spans from work initiated in previous administrations, including investigations into the US meat industry and efforts to bring criminal cases against employers who agree not to poach each other’s workers.

The department also filed a major lawsuit against Google last year, alleging that the company uses adversarial tactics to maintain the monopoly of its major search engine and related advertising business. The Biden DOJ, working with a group of state attorneys general on the matter, is preparing for a trial — not scheduled until 2023 — and considering whether a strategy targeting Google’s dominance in the digital-ad market. One additional case may be brought.

The department is separately considering whether to challenge Apple’s policies on managing its App Store, an investigation that was opened in a previous administration but has intensified this year, people familiar with the matter said. Decisions on both of those tech sector matters are expected in the coming months.

In other areas, the department has made a clear break with the actions of the Trump years. In July, it withdrew from an antitrust agreement reached last year with the real estate industry’s largest trading group on brokers’ commission. The agreement with the National Association of Realtors included terms designed to increase transparency and prevent misrepresentation about broker commissions. In withdrawing, the department said the agreement does not protect its right to investigate other conduct by the business group which may affect competition and harm home buyers and sellers. The NAR is now challenging a recently received summons from Justice.

The department is also expected to adopt policies that give companies less room to exercise their intellectual property rights to limit competition. And the DOJ recently indicated that it had concerns about the adequacy of new guidelines it issued last year that govern how it and the FTC review so-called vertical mergers of companies that directly interact with each other. do not compete.

The five-member FTC voted 3-2 on partisan lines last month to formally withdraw those guidelines. The commission’s new chair, Leena Khan, is a leading progressive advocate for overhauling antitrust enforcement. She has been laying the groundwork for changes to the commission since settling in the job, but has yet to lead any major new cases.

write to Brent Kendall [email protected] . Feather

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