FTC and DOJ Officials Testify to Congress on Antitrust Enforcement Efforts

Practical Law Legal Update 2-613-2946 (Approx. 4 pages)

FTC and DOJ Officials Testify to Congress on Antitrust Enforcement Efforts

by Practical Law Antitrust

FTC Enforcement Activity

Chairwoman Ramirez noted that in fiscal year (FY) 2014, premerger filings under the Hart-Scott-Rodino (HSR) act increased by 25% over HSR filings in FY 2013. The FTC focused their enforcement efforts on key markets, such as:

Health care, including by:
- preventing anticompetitive mergers;
- challenging reverse payment settlement agreements, otherwise known as pay-for-delay agreements (see Legal Update, FTC Commissioner Wright Delivers Remarks on Reverse Payment Settlements, Notes Actavis Applies to Non-cash Payments); and
- prohibiting exclusionary conduct (see Legal Update, FTC Requires Cardinal Health to Disgorge $26.8 Million to Settle Monopolization Suit).
Consumer products and services, including by challenging mergers between:
- supermarkets;
- class ring vendors;
- funeral and cemetery service providers; and
- foodservice distribution service providers.
Manufacturing and technology.
Energy.

Chairwoman Ramirez also outlined the FTC's research and advocacy efforts, highlighting its two 6(b) studies of:

Patent assertion entities, which is in its final stages.
Merger remedies, designed to gauge the effectiveness of FTC-ordered divestitures.

Chairwoman Ramirez also noted that the FTC hosts workshops on emerging business practices and technologies to stay abreast of current antitrust issues.

DOJ Enforcement Activity

Assistant Attorney General Baer focused his remarks on DOJ enforcement activity relating to:

Cartels.
Civil enforcement.
Advocacy and interagency collaboration.

Cartels

The DOJ obtained nearly $1.3 billion in criminal fines in FY 2014, the highest amount ever obtained in a single fiscal year. The DOJ filed 62 cases in FY 2014 against 44 executives and 18 companies. The average prison sentence from 2010 to 2014 was nearly 25 months, up from 20 months from 2000 to 2009 and eight months in the 1990s. The DOJ also secured its first ever extradition on an antitrust charge for an Italian national extradited from Germany for his alleged participation in a marine hose cartel.

The DOJ continued its domestic and international cartel enforcement, including the:

Auto parts cartel.
LIBOR cartel.
Thin-film transistor liquid crystal display (TFT-LCD) panels cartel.
Real estate foreclosure auctions cartels.

For more information on the DOJ's cartel enforcement, see Cartels Toolkit.

Civil Enforcement

Baer noted that the DOJ has recently blocked three major mergers that were abandoned after the DOJ voiced concern over the mergers' competitive effects. The DOJ was also successful in three major civil antitrust actions, including against American Express (see Legal Update, EDNY Finds that American Express's Anti-steering Rules Violate Sherman Act Section 1).

Advocacy and Interagency Collaboration

Baer lauded the DOJ's cooperation with the FTC, particularly on workshops focusing on current antitrust issues. Baer also noted the DOJ's strong partnerships with state attorneys general and foreign competition authorities to promote competition domestically and abroad.

The DOJ is also working to provide antitrust guidance and assistance to the business community, including by:

Working with the FTC on a joint policy statement on information sharing about cyber threats.
Issuing a business review letter regarding updated patent policies (see Legal Update, DOJ Antitrust Division Approves Revised IEEE Policy for Standard-essential Patents).
Accepting predictive coding for more efficient electronic records production.
Offering a streamlined procedure for parties wishing to terminate or modify settlement agreements and other judgments entered before 1980.

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