Antitrust Enforcers Provide Views at ABA Spring Meeting

This posting was written by Jeffrey May, editor of CCH Trade Regulation Reporter.

Merger review dominated the enforcement roundtable discussion at the American Bar Association Section of Antitrust Law Spring Meeting on April 20 in Washington, D.C.

Representatives from the FTC, the Department of Justice Antitrust Division, the European Commission (EC), and the states were on hand to give their perspectives on current antitrust enforcement efforts. However, much of the questions related to merger enforcement activity by the federal antitrust agencies.

Lax Merger Enforcement?

FTC Chairman Deborah Platt Majoras responded to reports of lax merger enforcement. Majoras believes the agencies are being “sufficiently aggressive.” She wondered aloud what unchallenged mergers were harming consumers.

Thomas O. Barnett, Assistant Attorney General in charge of the Department of Justice Antitrust Division, said he questioned seriously the methodology of critics who claim that merger enforcement is inadequate. Barnett said that parties were working to find the most narrow remedy to resolve the government's competitive concerns and then moving on.

Robert L. Hubbard, Chair of the National Association of Attorneys General Multistate Antitrust Task Force and Chief of Litigation in the New York Attorney General's Antitrust Bureau, contended that differences in relief required by federal and state enforcers for merger approval did not suggest that the states were applying a different standard. According to Hubbard, the fact that “reasonable minds can differ” was a better explanation for the additional relief sought by one of the reviewers.

Speaking about cooperative enforcement, EC Competition Commissioner
Neelie Kroes said “at the end of the day, we all have the same goal--competition law enforcement.” With respect to international merger review, Barnett contended that cooperation had become “routinized.”

Clearance Process

Neither Barnett nor Majoras anticipated a clearance process agreement between the federal agencies for determining which agency would conduct investigations and merger reviews for matters within their shared antitrust jurisdiction. Majoras said that it was difficult for her to imagine an agreement like the one proposed by the agencies in 2002.

The 2002 agreement (CCH Trade Regulation Reporter ¶50,185) was abandoned by FTC Chairman Timothy J. Muris and Antitrust Division chief Charles James, after Senator Ernest Hollings—a ranking member of the Senate Appropriations Committee at the time—threatened to suspend FTC funding if the agency continued with the agreement.

Majoras added that efforts to streamline the clearance process were a good idea, but she was against any proposal to send jurisdictional disputes over merger reviews to mediation.