United States: Antitrust Division

In summary

Throughout covid-19, the US DOJ’s Antitrust Division has continued its civil and criminal enforcement activity, achieving a number of successful outcomes, and worked on numerous policy developments, both domestically and through international cooperation. With the announcement of a major executive order on competition announced by the President in summer 2021, adopting a ‘whole of government’ emphasis on competition, the importance of the Division’s work in promoting competition and enforcing US antitrust laws is assured.

Discussion points

• Six expedited Business Review Letters issued pursuant to covid-19 response
• Reorganisation of Antitrust Division civil enforcement programme
• US$529 million in penalties and fines from criminal enforcement actions
• Over 12,000 individuals, including 1,200 data science professionals, trained at 500 agencies pursuant to Procurement Collusion Strike Force
• 72 specific actions focusing on competition in the economy addressed by executive order

Referenced in this article

• United States v Google
• United States v Visa and Plaid
• United States v Aon plc and Willis Towers Watson plc
• Generic Pharmaceuticals investigation and Broiler Chickens investigation
• MMAC Framework for Competition Authorities
• Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA)
• Criminal Antitrust Anti-Retaliation Act (CAARA)
• NCAA v Alston
• President Biden’s Executive Order on Competition in the American Economy

Introduction

The United States Department of Justice Antitrust Division (the Division) remained at work for American consumers while staying at home in the past year. Starting in March 2020, the covid-19 pandemic left the Division – like the rest of the United States federal government and competition agencies across the globe – in a telework posture, with limited access to physical office space and in-person meetings. Despite operating in a virtual workspace, however, the Division’s achievements were real. Division personnel continued to enforce the US antitrust laws in spite of the challenges presented by their working environment, and both civil and criminal enforcement efforts produced significant results in the ‘new normal’ created by the covid-19 response. In addition to the Division’s enforcement work, its international and policy sections marked significant achievements related to their engagement with the global competition community and advocacy for important legislative and other legal developments impacting competition law in the United States.

Ongoing covid-19 response

Addressing the challenges presented by covid-19 and the potential impacts on competition related to the pandemic in the United States have remained top priorities for the Division. The Division not only adapted its own processes to facilitate the need for an unprecedented response to the pandemic by private industry but also supported a variety of inter-governmental initiatives in the United States.

At the onset of the pandemic in the United States, the Division and the Federal Trade Commission (FTC) jointly issued guidance for business collaboration efforts.^[1] Recognising that some collaborations between individuals and businesses could be procompetitive and necessary to respond to the exigencies of the pandemic, as part of this guidance, the Division committed to expedite its process for issuing business review letters (BRLs), through which it analyses competition concerns about proposed collaborations, that were directed to getting needed supplies and medicines to healthcare workers and covid-19 patients. Typically, BRLs take several months, but the Division aimed to issue BRLs related to covid-19 or pandemic health and safety within seven calendar days. To date, the Division has responded to six requests for expedited BRLs, providing guidance on private partnerships to distribute personal protective equipment and medication, to address supply chain problems in agriculture, and to facilitate the production of new covid-19 treatments, among other issues.

Division staff also worked closely with other federal agencies, including the Federal Emergency Management Agency (FEMA), to ensure both that US antitrust laws did not deter important response efforts led by the federal government – such as the efficient and rapid manufacture and distribution of critical health care resources – but also that such responses did not unnecessarily reduce competition that benefits American consumers. Specifically, the Division has supported FEMA in utilising statutory authorities under the Defense Production Act,^[2] which provides an antitrust defence to private parties acting in concert with US federal government agencies to coordinate and respond to an emergency. The statutory antitrust defence is enabled by a voluntary agreement and associated plans of action between the government and industry participants, but before any of those agreements and plans became effective, the head of the Antitrust Division, in consultation with the head of the FTC, reviewed the plans to ensure that their purposes could not be achieved through less anticompetitive means. To date, such findings have been issued for five pandemic-related voluntary agreements and implementing plans of action relating to personal protective equipment, medical devices, medical gases, diagnostic test kits, and drug products and substances and associated devices.^[3]

Civil enforcement updates

Programme reorganisation

Civil enforcement at the Division continued to adapt its practice to the challenges of a changing economy, including the increasingly prevalent roles of technology platforms in the digital economy. To allow for more vigilant enforcement and deepen its expertise in trending technology, in August 2020, the Division reorganised its civil enforcement programme, creating a new Office of Decree Enforcement and Compliance (ODEC) and Civil Conduct Task Force and redistributing matters among its existing six civil enforcement sections.

ODEC is tasked with enforcing judgments and consent decrees in civil matters. It also will work closely with criminal programme attorneys in their assessment of corporate compliance programmes in those cases when parties seek to have the programmes credited at the Division’s charging stage.^[4] The Civil Conduct Task Force is comprised of Division attorneys from across offices who are dedicated to identifying conduct (as opposed to merger) investigations that require additional focus and resources. The task force’s mandate is to investigate and, as necessary, pursue civil conduct violations of the antitrust laws in federal courts. Finally, acknowledging the impact that technology has had on the industrial sectors typically covered by the Division’s civil enforcement attorneys, the Division consolidated responsibility for financial services, financial technology and banking in a single section; expanded the portfolio of its media, entertainment, and telecommunications office; and focused another section specifically on technology markets and the competitive characteristics of platform business models.^[5]

Enforcement actions

As competition enforcers around the globe take steps to address competition in digital markets, the Division is no exception. In October 2020, the Division sued Google, alleging that the company unlawfully maintained a monopoly in general search services and search advertising in violation of US antitrust laws.^[6] The civil action was the outgrowth of a broader Department of Justice review of online market-leading platforms, which was commenced in 2019.^[7] As the then-Attorney General said, the case was ‘monumental’ for both ‘the Department of Justice and, more importantly, for the American consumer’, and though an important milestone, it was not the end of the Department’s review of competition in the digital economy.^[8] Eleven states joined the filed complaint, which is being litigated in federal court in the District of Columbia,^[9] and three additional states subsequently joined.^[10] There is an anticipated trial date in 2023.

The Division’s efforts to protect consumers engaged in the digital economy were not limited to the Google lawsuit. In November 2020, the Antitrust Division filed a civil lawsuit to stop the global payments giant Visa’s proposed US$5.3 billion acquisition of Plaid, a successful fintech firm and important nascent competitor that was developing a payments platform that could challenge Visa’s monopoly in debit card services.^[11] Plaid’s platform allows consumers to link bank accounts directly to fintech applications that have experienced substantial growth in usage by American consumers with the expansion of online shopping. Plaid’s existing connections to 200 million consumer bank accounts and over 11,000 banks left it uniquely situated to compete with Visa – which the Division alleged controlled approximately 70 per cent of the online debit services market – in an industry characterised by significant barriers to entry. Shortly after the lawsuit was filed, Visa and Plaid abandoned the deal, preserving Plaid’s potential to innovate in the market and compete with Visa.^[12]

The Division also remained active with its merger enforcement activity outside of the technology sector. In June 2021, the Division filed a civil antitrust lawsuit to block the proposed acquisition of Willis Towers Watson by Aon. As alleged in the Division’s complaint, the merger threatens to eliminate competition that benefits American consumers, raise prices, and reduce innovation for customers who rely on the services provided by these companies, two of the three largest insurance brokers in the world.^[13] After the lawsuit was filed, the parties abandoned the planned merger in what the Attorney General hailed as a ‘victory for competition and for American businesses’.^[14]

Criminal enforcement updates

Record litigation

The covid-19 pandemic did not stop the Division’s criminal programme from continuing its investigations into cartel conduct and, at an historically high level, litigating criminal charges. By July 2021, criminal programme attorneys were preparing for the highest number of trials since 1993, with 17 pending trials against nine companies and 31 individuals, including eight current or former chief executive officers and corporate presidents, spanning 14 separate investigations. These include trials in the programme’s labour market cases, as well as in the Division’s long-running investigations of price-fixing in the generic pharmaceuticals and proteins industries.

The Division’s criminal programme also resolved several cases short of litigation, imposing US$529 million in criminal penalties and fines through negotiated resolutions in fiscal year 2020, its highest total in five years.

Labour market cases

In 2016, the Division and FTC jointly issued their Guidance for Human Resources Professionals,^[15] in which the agencies reaffirmed their commitment to preserving competition in labour markets. The Guidance specifically noted that ‘DOJ intend[ed] to proceed criminally against naked wage-fixing or no-poaching agreements’, noting that ‘[t]hese types of agreements eliminate competition in the same irredeemable way as agreements to fix product prices or allocate customers.’^[16] In 2021, the Division followed through on its commitment as to both wage-fixing and no-poach agreements, indicting three separate cases that charge these per se unlawful agreements as criminal violations.

In December 2020, a grand jury charged the owner of a Texas therapist staffing company with a violation of US antitrust law for illegally agreeing with another company to fix the prices paid to physical therapists and their assistants, rather than competing for these professionals by offering them more competitive pay, a per se violation of the Sherman Act.^[17] The indictment separately charged the defendant with obstruction of a separate FTC investigation into the conduct by lying about and withholding and concealing information regarding his conduct, including by providing FTC investigators a falsified document. In April 2021, a second defendant was charged in the wage-fixing conspiracy, and also named in additional criminal charges related to obstructing the FTC’s investigation.^[18] In announcing the charges, Division leadership underscored their commitment to enforcement of the antitrust laws as they apply to ‘American workers who deserve the benefits of competitive wages, mobility, and competition among employers for their services’.^[19]

In January 2021, in a two-count indictment, a grand jury charged a company that owned and operated outpatient medical care centres and a successor entity with agreeing with two other companies not to solicit each other’s senior employees, also as a per se violation of US antitrust law.^[20] According to the indictment, the conspiracy was formed through communications between the company and its co-conspirators’ top executives and memorialised in emails. The executives also took steps to monitor the agreements for compliance. In July 2021, a separate grand jury indicted another company, which also owned and operated outpatient medical care facilities across the United States, and its former chief executive officer in a two-count indictment that charged the defendants with per se violations of US antitrust laws for their roles in agreements not to solicit employees of competitors.^[21]

The defendants in all cases are presumed innocent pending the results of the respective trials, and the matters are being litigated in federal court.

Other notable criminal enforcement matters

The Division’s criminal prosecutors also made headway on a number of their longest-running cartel enforcement efforts.

In the investigation and prosecution of price-fixing, bid-rigging and customer allocation in the generic pharmaceutical industry, in August 2020, the Division brought criminal charges against a seventh manufacturer of generic pharmaceuticals.^[22] A federal grand jury issued a three-count indictment against the company for its role in multiple conspiracies involving several previously charged companies and individuals that impacted a wide range of drugs, including a commonly prescribed cholesterol medication and drugs used to treat arthritis, brain cancer and cystic fibrosis.^[23] The charges against the drug manufacturer and another co-conspirator manufacturer of generic drugs are set to be litigated at an upcoming trial. Five previous corporations resolved their cases through deferred prosecution agreements under which they paid fines that totalled over US$425 million. Three individuals also have pleaded guilty, and a fourth was indicted and is awaiting trial.^[24]

Division prosecutors also continued their pursuit of a price-fixing and bid-rigging conspiracy affecting broiler chickens, which are raised for human consumption and sold to retail grocers and restaurants. In June 2020, a federal grand jury charged four senior executives of major producers of broiler chickens – including corporate presidents, vice presidents, and a chief executive officer – for their roles in the conspiracy.^[25] In October 2020, a superseding indictment charged six additional defendants for their roles in the conspiracy, which lasted from at least 2012 until at least 2019.^[26] In addition to these individuals, the Division is prosecuting the corporations that were involved in the conspiracy. In February 2021, the Division announced that a major producer of broiler chickens pleaded guilty and agreed to pay a fine of approximately US$107 million for its participation in the conspiracy,^[27] and in May 2021, a grand jury indicted another broiler chicken producer for its role in the conspiracy.^[28]

Expansion and successes of public procurement initiatives

The Division also continued and expanded its Procurement Collusion Strike Force (PCSF) initiative to deter and detect antitrust crimes that impact public procurement processes. The PCSF, which began in November 2019, added nine judicial districts and two national law-enforcement partners to the initiative at the end of 2020.^[29] It also continued its outreach efforts, successfully leveraging the pandemic environment to conduct a large number of virtual trainings, important outreach made even more important in the wake of enormous taxpayer funds spent on the pandemic response. To date, Division prosecutors have trained more than 12,000 law enforcement agents, contracting officials and analysts from over 500 unique agencies on detecting bid-rigging and other conspiratorial offences that impact public procurement processes as part of the PCSF’s efforts.

Among these trainings were several conducted under the auspices of the PCSF’s Data Analytics Project, through which the Division partners with other federal agencies to use bid data and develop analytical tools to detect potential bid-rigging. Through the Data Analytics Project, the Division has advocated for better collection and retention of bid data across the federal government. Over 1,200 data professionals have participated in five PCSF-organised webinars on the use of these techniques. As part of this project, Division personnel also have engaged their partners internationally, looking to and consulting with a number of other competition agencies to develop a better understanding of the possibilities for using data to enhance agencies’ ability to combat bid-rigging.

In an additional development, in 2021, the PCSF built off its existing model to expand to a global audience.^[30] Through the PCSF Global initiative, Division attorneys will work not only with US law enforcement agents stationed overseas to protect the large number of US procurements outside the continental United States, but also with other competition agencies around the globe to build connections and capacity to increase awareness of the harms of bid-rigging and develop a stronger culture of procurement integrity and collusion awareness worldwide.

The PCSF also realised several tangible investigative results from its outreach efforts. In addition to nearly three dozen new investigations relating to procurement collusion that have been opened by Division prosecutors since the inception of the PCSF, in October 2020, a grand jury in North Carolina indicted an engineering firm and one of its former executives for participating in long-standing conspiracies to rig bids and defraud a state department of transportation.^[31] In June 2021, the firm agreed to plead guilty and pay a US$7 million criminal fine and make restitution to the state of over US$1.5 million.^[32] Also in June 2021, the PCSF marked its first resolution in an international case, as a Belgian company agreed to plead guilty for rigging bids, fixing prices, and allocating customers for security services in Belgium, including those provided to the US Department of Defense and the North Atlantic Treaty Organization.^[33] In the same investigation, shortly after announcing the corporate plea agreement, a federal grand jury indicted another Belgium-based security services company and three individuals– all Belgian nationals – for their roles in the conspiracy.^[34]

International engagement and competition policy developments

In addition to its civil and criminal enforcement efforts, the Division maintained an active engagement with both international and domestic policy developments in spite of the pandemic.

International engagement and developments

Along with the FTC, the Division co-hosted the 19th annual conference of the International Competition Network (ICN) in September 2020. Originally planned as an in-person event in Los Angeles, the multi-day conference pivoted to a virtual environment and featured a wide variety of viewpoints on some of the most important competition enforcement and policy issues facing ICN’s members, including those addressing competition in the digital economy.^[35] In total, over 2,500 participants, including both competition agency leadership and staff, attended the virtual conference, at which they heard from a diverse array of panelists representing nearly 30 jurisdictions.

On 2 September 2020, the Division, along with the FTC, entered a new competition enforcement framework with enforcers in Canada, Australia, New Zealand and the United Kingdom. Under the Multilateral Mutual Assistance and Cooperation (MMAC) Framework for Competition Authorities, the Division hopes to strengthen cooperation among the five signatory nations’ competition enforcers. The MMAC Framework provides a basis for a series of bilateral agreements regarding investigative assistance among its signatories, including sharing confidential information and assistance with cross-border evidence gathering.^[36] The MMAC Framework includes a memorandum of understanding among the agencies, as well as a model agreement that is expected to serve as a template for subsequent bilateral agreements to enhance cooperation in both criminal and civil conduct (ie, non-merger) investigations.

The Division also took advantage of the widespread use of videoconferencing technology to conduct a large number of international outreach events and provide technical assistance to other agencies. In total, Division personnel conducted 24 technical assistance programmes – many of which were for other enforcers in the Americas, including CARICOM, the Dominican Republic, Ecuador, Mexico and Peru. In addition to these technical assistance programmes, Division personnel participated in nearly 120 separate international engagements, including almost a dozen covid-19-specific topical engagements.

Competition advocacy and policy developments

The past year saw two notable legislative developments with regard to the Antitrust Division’s criminal programme. The first was the reauthorisation, on a permanent basis, of the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA). ACPERA initially was passed in 2004 to provide greater incentives for corporations to self-report their involvement in criminal antitrust conspiracies and cooperate with Antitrust Division investigations through its Leniency Program. Under ACPERA, in addition to the non-prosecution protections of the Division’s Leniency Program, successful corporate applicants to the programme also have their civil damages exposure reduced – by de-trebling damages and eliminating joint and several liability for the applicant – in exchange for the leniency applicant’s cooperation with civil plaintiffs in private litigation, thereby removing significant disincentives to seeking corporate leniency. ACPERA was originally passed with a five-year sunset provision, and in 2010, Congress extended ACPERA for another 10-year period.^[37] But in 2020, the reauthorisation made ACPERA’s reporting and cooperation incentives permanent, ensuring that it will continue to strengthen the Antitrust Division’s ability to detect and prosecute cartel activity through the Leniency Program.

At the end of 2020, the Criminal Antitrust Anti-Retaliation Act (CAARA)^[38] was signed into law. CAARA enhances the protections for employees who blow the whistle on criminal antitrust violations by prohibiting employers from taking punitive or retaliatory employment actions against any individual covered by the law for either reporting a potential criminal antitrust violation (to the employer or an enforcement agency) or assisting the federal government in any investigation or proceeding related to a criminal antitrust violation. Whistle-blowers who prevail in complaints under CAARA are entitled to relief that includes reinstatement of employment at the same level of seniority, back pay with interest, and compensation for attorney’s fees, litigation costs and witness fees. (CAARA does not, however, provide for monetary awards to whistle-blowers, and it does not protect employees who planned and initiated an antitrust violation or related crimes or obstructed an Antitrust Division investigation.) With its safeguards against employer reprisals, CAARA supplements the Antitrust Division’s already robust set of policies and programmes designed to support the detection, investigation and prosecution of criminal antitrust violations.^[39]

The Division remains active in monitoring potential additional legislative developments in the United States’ competition laws. In summer 2021, several legislative bills containing proposals to strengthen US antitrust laws, particularly in the technology sector, were introduced in the United States Congress.

The Division also advocated for strong and sound competition policy in the courts by filing amicus curiae briefs in litigation that had the potential to impact the application of US antitrust laws. Notably, the Division filed a brief as amicus curiae with the United States Supreme Court in the matter of NCAA v Alston, a case that dealt with the application of federal antitrust law in a dispute between student-athletes and the National Collegiate Athletic Association (NCAA), which imposed rules limiting the compensation and benefits that its member colleges and universities could offer student-athletes.^[40] The Division’s brief urged the Court not to adopt a lower standard than the traditional rule-of-reason analysis in evaluating the claims of the student-athletes who challenged the NCAA’s rules. In June 2021, in a unanimous 9-0 decision, the Supreme Court ruled for the petitioners and upheld application of the rule-of-reason standard in the dispute.^[41]

The most notable policy development with regard to US antitrust enforcement, however, came with President Joseph R Biden’s 9 July 9 2021 Executive Order on Promoting Competition in the American Economy.^[42] In announcing the Order, President Biden recognised that ‘[t]he heart of American capitalism is a simple idea: open and fair competition’ and noted that the Order will promote competition ‘to lower prices, to increase wages, and to take another critical step toward an economy that works for everybody’.^[43] Among the Order’s 72 specific actions are directives to focus enforcement efforts on labour markets, agricultural markets, healthcare markets and the technology sector (including greater scrutiny of mergers by dominant internet platforms); recognise that the antitrust laws allow the Antitrust Division and FTC to challenge prior bad mergers that were not challenged previously; and establish a White House Competition Council that will monitor progress on the initiatives in the Order without involving itself in specific enforcement actions.^[44]

The Attorney General welcomed the Order and reaffirmed the Department of Justice’s commitment to enforcing the nation’s antitrust laws and working across the US government to maximise competition.^[45] The Order calls for a ‘whole of government’ competition policy that underscores the importance of the Antitrust Division’s engagement with other federal agencies to share its expertise in antitrust enforcement and competition broadly. Among its many responses to the Order, the Antitrust Division established an internal task force to achieve the goals of the Order. This task force’s focus will include developing and strengthening the Division’s interagency relationships; promoting rulemaking efforts by other agencies that will open critical economic sectors to competition; and continuing the work already begun by the Division to implement effectively CAARA and to combat procurement fraud through its leadership of the PCSF. Additionally, in response to the Order, the leadership of the Division and FTC jointly issued a statement acknowledging that US merger guidelines should reflect ‘current economic realities and empirical learning’ and announced that the agencies would commence a review of existing merger guidelines with the goal of updating them to reflect ‘a rigorous analytical approach consistent with applicable law’.^[46]

Conclusion

Throughout the covid-19 pandemic, the Antitrust Division’s attorneys, economists and other personnel have persevered to produce results for the American consumer that would be notable under any circumstances. That they have done so largely from their own homes and other remote work stations makes them all the more notable. Looking ahead, the Division can anticipate still more changes, including safely returning to an in-person work setting as the pandemic abates, supporting the competition policies and priorities of the Biden administration as reflected in its Executive Order on Competition, and potentially even adapting to new laws in an era of increased focus on the importance of competition to consumers and the need for vigorous and vigilant enforcement of US antitrust laws. The resiliency, flexibility and efficacy of Division staff in the face of a global pandemic has shown that they can handle these and any other changes that await them.

^* The views expressed in this submission belong to the author and do not purport to be those of the United States Department of Justice.

Notes