US Government Enforcement

Marking the first change in lead US antitrust enforcers since President Obama put his team in place, Christine Varney announced on 6 July 2011 that she would be resigning as the head of the US Department of Justice (DoJ) Antitrust Division.¹ Ms Varney assumed her position in April 2009, quickly highlighting a significant difference with the prior administration by announcing the following month that she was withdrawing a controversial 2008 report about single-firm conduct under section 2 of the Sherman Act (section 2) because she found certain parts of the report’s conclusions too permissive of anti-competitive conduct.² Ms Varney also promised that the US antitrust agencies would ‘vigorously’ apply the antitrust laws to police US markets.³ Upon resigning, Ms Varney assessed her tenure as having ‘fulfilled [her] promise and more.’⁴

At the Federal Trade Commission (FTC), Jon Leibowitz continued to serve as chairman and was renominated by President Obama to another term. In April 2010, two new commissioners nominated by President Obama joined the FTC: Julie Brill, a former state antitrust and consumer protection enforcer; and Edith Ramirez, formerly in private practice.⁵ President Obama chose Maureen Ohlhausen, a private practitioner formerly at the FTC, to succeed Commissioner William Kovacic.

An increase in some antitrust enforcement activities has generally been noticeable in the statistics for fiscal years 2009 and 2010 at both the DoJ and FTC, as compared to the immediately preceding years.⁶ Yet, a simple look at the agencies’ statistical record does not tell a story of increased antitrust enforcement across the board. For instance, while merger enforcement actions were again up in 2010,⁷ the number of civil non-merger enforcement actions declined significantly in 2010 to numbers at or below recent-year norms.⁸

The number of enforcement actions can only ever tell part of the US government antitrust story. During this period, the US enforcement agencies have continued to take on notable cases and have also increased transparency by issuing revisions to some of their policy guidelines. These incremental revisions to agency practices seem likely to impact government enforcement of the antitrust laws in the United States for years to come.

Merger enforcement

In 2010 and early 2011, the US agencies continued to increase the number of merger enforcement actions undertaken. While transactions involving industries such as technology, health care, pharmaceuticals and consumer products attracted high levels of scrutiny, these were not alone. There were other challenges to major deals that would have reshaped important industries. For example, an $11.3 billion merger proposal that in part would have given NASDAQ the ability to control the ‘NYSE’s stock listings business, stock trading venues and market data licensing operations’ was abandoned by the parties in May 2011 after the DoJ told them it would seek to block the deal because ‘NYSE and NASDAQ are the only competitors in several businesses vital to the success of US equity markets.’⁹

Mergers by the numbers

In 2010 - no doubt reflecting the changing health of the US economy - the number of transactions reported to the agencies pursuant to the Hart-Scott-Rodino Act increased to 1,166 from only 716 in 2009.¹⁰ The 2010 total, however, was the third-lowest since 2001, and still well below the 1,726 transactions reported in 2008.¹¹ Early reports for 2011, however, suggest that the number of transactions may increase again. Between 1 October 2010 and 24 June 2011, more than 950 transactions were reported to the agencies pursuant to the Hart-Scott-Rodino Act.¹²The number of second requests issued by the agencies also increased in 2010, perhaps reflecting in part the increase in reported transactions. In 2010, the agencies issued 46 second requests (FTC, 20; DoJ, 26), as compared to 31 in 2009.¹³ Second requests, as a percentage of the number of overall reported transactions, remained almost the same - 4.5 per cent in 2009 and 4.1 per cent in 2010.¹⁴ In 2008, the percentage was 2.5 per cent.¹⁵

The number of merger challenges also increased in fiscal year 2010, as might be expected with an increase in second requests. The FTC challenged 22 transactions, which led to 19 consent orders, one administrative complaint and three abandoned transactions.¹⁶ The DoJ challenged 19 merger transactions.¹⁷ Eleven of these transactions were resolved by consent decrees.¹⁸ Eight transactions were abandoned or restructured by the parties.¹⁹

It is difficult to isolate precisely the factors that determine the agencies’ merger enforcement statistics. These factors may include the level of resources available, which may vary with the budget, the number and nature of ‘relevant’ transactions, and the demands of other areas of antitrust enforcement. For example, as the pace of the recovery from the financial crisis continues to be modest, US corporations reportedly hold record levels of cash and have been looking for ways to re-invest their capital.²⁰ This might lead to increases in the number of transactions as compared to prior years, and also the percentage of ‘strategic’ deals, which are more likely to raise antitrust issues.

2010 Horizontal Merger Guidelines

Perhaps the most significant development in 2010 related to agency merger enforcement was the finalisation of changes to the agencies’ Horizontal Merger Guidelines, although both the DoJ and FTC say that the 2010 version is merely intended to reflect practices that have evolved since the superseded 1992 Guidelines. Consistently, FTC Chairman Jon Leibowitz has stated: [t]he proposed Guidelines... reflect the current state of merger analysis at the FTC [and DoJ] and will help make the process more transparent to American businesses and courts.²¹ In content the new guidelines:

• clarify that merger analysis does not use a single methodology, but is a fact-specific process through which the agencies use a variety of tools to analyse the evidence available to determine whether a merger may substantially lessen competition;
• introduce a new section on Evidence of Adverse Competitive Effects that discusses several categories and sources of evidence that the agencies, in their experience, have found informative in predicting the likely competitive effects of mergers;
• explain that market definition is not an end itself or a necessary starting point of merger analysis and that market concentration is a tool that is useful to the extent that it illuminates the merger’s likely competitive effects;
• provide an updated explanation of the hypothetical monopolist test used to define relevant antitrust markets and how the agencies implement that test in practice;
• update the concentration thresholds that determine whether a transaction warrants further scrutiny by the agencies; and
• provide an expanded discussion of how the agencies evaluate unilateral competitive effects, including effects on innovation.²²

The changes to the Horizontal Merger Guidelines show that the agencies have the ability to be quite flexible in defining the relevant markets, competitive effects and relevant evidence, which can impact predictability and certainty. Too little time has passed to see whether the implementation of these revisions has impacted or will substantially impact US enforcement practices beyond what was already current agency practice at the time the Guidelines were adopted. Also, the effectiveness of the revisions will depend in part on whether the US courts follow the agencies’ lead regarding, for example, greater focus on competitive effects analysis, and lesser emphasis on more formalistic market share and market definition information.

Vertical merger challenges and remedies

Another area of substantive development has been enforcement against, and the remedies used to resolve competitive problems with, vertical mergers. This area has received substantial enforcement activity as well as increased attention in agency guidance.

In June 2011, the DoJ issued the 2011 Antitrust Division Policy Guide to Merger Remedies, revising the 2004 version of the same document.²³ This memorialised in part the DoJ’s approach to structural and conduct relief followed in the merger of Ticketmaster Entertainment, Inc and Live Nation, Inc where the DoJ required the parties to license ticketing software, divest ticketing assets and agree to anti-retaliation provisions before closing.²⁴

One change in the new guidance was to highlight the idea that conduct remedies can be of particular benefit to preserve efficiencies while resolving competitive concerns, generally in transactions with vertical elements: ‘[T]he Division will consider tailored conduct remedies designed to prevent conduct that might harm consumers while still allowing the efficiencies that may come from the merger to be realized.’²⁵ At least six types of conduct remedies were identified by the report:

• firewall provisions;
• non-discrimination provisions;
• mandatory licensing provisions;
• transparency provisions;
• anti-retaliation provisions; and
• prohibitions on certain contracting practices.²⁶

Since each may require some measure of ongoing supervision for years after a transaction closes, the DoJ Antitrust Division also centralised decree enforcement in its recently created Office of General Counsel.²⁷Similarly, the FTC has applied conduct remedies in cases with vertical issues such as Coca-Cola/Coca-Cola Enterprises.²⁸

Comcast/NBCU²⁹

In January 2011, the DoJ reached a settlement with Comcast Corp (Comcast) and General Electric Co’s (GE) subsidiary NBC Universal (NBCU). The settlement permitted the joint venture with certain conditions. Comcast was the largest video programming distributor in the country with about 23 million video subscribers, and a major broadband internet service provider, with total revenues in 2009 of $32 billion. GE owned 88 per cent of NBCU. NBCU produced, marketed and packaged news, sports and entertainment programming and, among other interests, owned a major film studio and broadcast networks, and widely carried national cable programming networks. It had total revenues of $15.4 billion in 2009. The DoJ’s complaint alleged that the joint venture would have reduced competition and innovation for video programming distribution throughout much of the United States. Specifically, the DoJ believed that Comcast’s cable, satellite and internet competitors needed access to NBCU programming to compete effectively against Comcast. The DoJ and Federal Communications Commission (FCC) believed Comcast would have an incentive to avoid making NBCU content available for distribution by rivals as before, to raise the price of the content, and that innovation in the marketplace might decline. Thus the DoJ, in cooperation with the FCC, required the parties to license and continue to distribute programming to certain online competitors and authorised arbitration of disputes. In addition, they agreed to anti-retaliation provisions protecting broadcast networks, cable programmers, production studios and content licensees who license content to a competitor of Comcast. Comcast agreed to sell its management rights in online distributor Hulu. Finally, Comcast was required to follow Open Internet requirements that prevent it from discriminating in the transmission of lawful network traffic.

Google/ITA Software³⁰

In April 2011, the DoJ reached a settlement in the $700 million acquisition of ITA Software Inc (ITA) by Google Inc (Google). Google was the largest search engine in the country with 2009 revenues of $23 billion. ITA was a leading domestic provider of airfare pricing and shopping systems in the United States and its software, which searches for air fares, schedules and availability, is used to operate other websites that compete to sell travel arrangements to consumers. The DoJ claimed the transaction would reduce competition among similar flight search websites in the United States, leading to less innovation and choice for consumers. In order for the transaction to proceed, the DoJ required Google to continue to license ITA’s travel software to competing websites on reasonable terms. In addition, Google must continue to fund research and development of the travel software at comparable levels to ITA’s historical funding amounts. Arbitration was authorised. Finally, the DoJ required Google to institute firewalls that restrict its use of its website customers’ competitively sensitive information. The settlement was designed to ensure that airfare websites will continue to have access to ITA’s pricing and shopping software.

Coca-Cola/Coca-Cola Enterprise³¹

The FTC challenged The Coca-Cola Company’s acquisition of Coca-Cola Enterprises. Coca-Cola Enterprises was the largest bottler of The Coca-Cola Company. In addition, Coca-Cola Enterprises also bottled many products of Dr Pepper Snapple Group, a competitor of The Coca-Cola Company. The transaction would have given The Coca-Cola Company access to confidential information of the Dr Pepper Snapple Group that could lead to anti-competitive conduct. As a prerequisite to completing the transaction, the FTC required The Coca-Cola Company to implement a ‘firewall’ that limited certain employees’ access to information about Dr Pepper Snapple Group.

Civil non-merger enforcement

By the numbers

As noted in this article in The Antitrust Review of the Americas 2011, 2009 (a year that was split between the Obama and Bush administrations) was among the most active years in civil non-merger enforcement in the past 10 years at the DoJ.³² The number of civil non-merger enforcement activities declined in 2010 toward more historical patterns and norms. Specifically, while in 2009 the DoJ had 57 pending civil non-merger investigations, in 2010 the DoJ initiated 38 pending civil non-merger investigations (comparable to 35 initiated in the last full year of the Bush administration).³³ Similarly, the number of civil investigative demands declined. In 2009, 247 civil investigative demands were issued, but only 136 were issued in 2010.³⁴

Similarly, the FTC has seen a decrease in the number of civil non-merger enforcement metrics. In 2009, the FTC initiated seven non-merger enforcement actions, three more than in 2008.³⁵ In the first six months of 2010, the FTC seemed on pace to increase enforcement by initiating seven new civil conduct cases.³⁶ However, since June of last year, the FTC has issued only one civil non-merger enforcement action.³⁷ Of course, during part of that time, the FTC was litigating its action against Intel Corporation (Intel).

Key section 1 cases

Despite the 2010 decrease in the number of cases, several interesting enforcement actions were initiated in 2010 under section 1 of the Sherman Act (section 1) in key industries such as technology, health care and financial services, related to, for example: restraints on employment competition; restraints related to most-favoured-nations (MFN) clauses; and restraints in two-sided markets. Some of these cases continued to be litigated in 2011.

United States v Adobe Systems, Inc, et al³⁸

On 24 September 2010, the DoJ filed a civil complaint against six of the best known high-tech companies in the United States: Adobe Systems Inc (Adobe), Apple Inc (Apple), Google, Intuit Inc (Intuit), Intel and Pixar, alleging that high-level executives of the six companies, which competed against each other for employees, entered into facially anti-competitive, ie, per se illegal, agreements not to solicit each other’s employees for employment via ‘cold-calling’, in violation of section 1. The agreements were between Apple and Google, Apple and Adobe, Apple and Pixar, Google and Intel, and Google and Intuit. The agreements allegedly were not ancillary to pro-competitive collaborations or limited by job function, geography or time period. The agreements were alleged to deprive high-tech employees of information and access to better job opportunities, reduce the defendant companies’ abilities to compete for employees and disrupt the normal price-setting mechanisms that apply in the labour setting. Therefore, the DoJ argued that the agreements should be treated as naked restraints of trade, under which there was no need to show evidence of anti-competitive effects such as reduced wages or benefits for employees. These cases were resolved by a consent decree prohibiting such conduct.

United States, et al v Blue Cross Blue Shield of Michigan³⁹

On 18 October 2010, the DoJ, along with the State of Michigan, filed a civil complaint against Blue Cross Blue Shield of Michigan (BCBS) under section 1, which alleges that the cost of health care and health insurance have been driven up in Michigan in part due to BCBS, a health insurer with market power, entering into anti-competitive MFN or most-favoured-nations ‘plus’ (MFN-plus) agreements that ensure that the health insurer will retain or gain a competitive advantage over other insurers in return for permitting hospital prices to increase to all insurers. This case echoes cases filed against health insurers by the DoJ during the 1990s, which also attacked MFN clauses in certain circumstances. An insurer’s MFN clause typically requires a hospital not to give better rates to another health plan. BCBS allegedly used two varieties of MFN clauses, one referred to as ‘equal to MFN’, which required that hospitals charge BCBS’s competitor commercial insurers at least as much as they charge BCBS for health services, and the other, MFN-plus, which required that hospitals charge BCBS’s commercial insurer competitors more than they charge BCBS, sometimes by 40 per cent. In exchange for acceptance of MFN-plus clauses, BCBS allegedly agreed to pay more for the hospital’s health services. The DoJ argued that BCBS has effectively ‘purchased protection from competition by causing hospitals to raise the minimum prices they can charge to Blue Cross’ competitors, but in doing so has also increased its own costs.’⁴⁰ The DoJ alleges that BCBS did not seek or use MFN clauses to lower its own costs of obtaining hospital services. The DoJ sought to enjoin BCBS from entering into or enforcing any MFN clauses with any hospital in Michigan. The litigation continued in 2011.

United States, et al v American Express, et al⁴¹

The DoJ, along with the states of Connecticut, Iowa, Maryland, Michigan, Missouri, Ohio and Texas, took on part of the financial services industry, filing a civil complaint on 4 October 2010 against American Express, Visa and MasterCard, the three largest credit card companies in the United States, alleging that the defendants’ restraints imposed on merchants who accepted their credit cards resulted in the elimination of competition between credit card companies in violation of section 1. All three defendants provide network services for general purpose credit cards - cards that allow consumers to make purchases from merchants without accessing or reserving the consumers’ funds at the time of sale and that are the preferred method of payment for most consumers. The DoJ alleged that to maintain control and to ensure a continued ability to demand higher fees from the merchants, the credit card companies imposed limitations on the merchants’ ability to offer incentives directly to credit card users to encourage the use of the payment methods that cost the merchants less to accept. The ability for merchants to encourage the use of cards with lower costs would potentially foster increased competition among credit card companies and drive down costs. The DoJ alleges that merchants generally must accept all the defendants’ credit cards in order to remain competitive with other merchants. A consent decree resolved the cases against Visa and MasterCard, but the case against American Express continued to be litigated in 2011.

Use of section 2

During the campaign, then-senator Obama lamented the pace of section 2 enforcement, noting that ‘in seven years, the Bush Justice Department has not brought a single monopolisation case.’⁴² Shortly after her appointment as assistant attorney general in charge of the Antitrust Division, Christine Varney vowed that section 2 enforcement would be part of the DoJ’s toolkit: ‘The Antitrust Division must step forward and take a leading role in the development of the government’s multi-faceted response to the current market conditions. Vigorous antitrust enforcement action under section 2 of the Sherman Act will be part of the Division’s critical contribution to this response.’⁴³ The DoJ brought a section 2 case in 2010, challenging a monopolist for engaging in traditional anti-competitive unilateral conduct:

United States, et al v United Regional Health Care System⁴⁴

In February 2011, United Regional Health Care System of Wichita Falls, Texas (United Regional) stipulated to a consent decree proposed to the US District Court for the Northern District of Texas by the DoJ and the Texas attorney general (plaintiffs). The DoJ’s complaint focused on United Regional’s role in two product markets, general acute-care inpatient hospital services and outpatient surgical services sold to commercial health insurers, within a geographic scope ‘no larger than the Wichita Falls Metropolitan Statistical Area,’ which is comprised of Archer, Clay and Wichita counties.⁴⁵ According to the complaint, United Regional used its monopoly power to structure its pricing so as to make it prohibitively expensive for commercial insurers to also contract with any other facility in the area. Specifically, the DoJ alleged, United Regional imposed a 13 to 27 per cent price penalty on insurers who also contracted with other providers in Wichita Falls. To accomplish this, United Regional allegedly provided a much higher discount off billed charges (25 per cent, for example) if an insurer made United Regional the only provider in the network, as opposed to a much smaller discount (5 per cent, for example) if other providers were included in the network. Allegedly, as a result of this pricing structure, although insurers technically had a choice between exclusivity or non-exclusivity, not a single insurer opted for the non-exclusive discount structure in the more than 12 years that United Regional engaged in this practice.

FTC Act section 5

In 2010, the FTC continued to make substantial use of section 5 of the FTC Act, which prohibits ‘unfair methods of competition’ and ‘unfair or deceptive acts or practices.’⁴⁶ Among the attractions to the FTC of using section 5 to attack anti-competitive activity is the perception that the courts have become hostile to section 2 cases and the desire to stop potentially anti-competitive conduct in its incipiency before it results in an agreement that would constitute a traditional violation of section 1.⁴⁷ For instance, in August of 2010, the FTC announced the end of its large section 5 case against Intel with the approval of a settlement that aims to prevent the recurrence of Intel’s allegedly exclusionary and deceptive conduct by requiring Intel to maintain an open interface on certain CPU platforms for six years and preventing Intel from engaging in similarly ‘exclusionary’ conduct in the future.⁴⁸ Near that time, the FTC also sued U-Haul International, Inc (U-Haul) for allegedly inviting collusion from Avis Budget Group, Inc (Budget) on the price for truck rentals, although no agreement was actually reached between the parties.

In the Matter of U-Haul, Inc and AMERCO⁴⁹

U-Haul and its parent company settled FTC charges that they violated the FTC Act by inviting U-Haul’s closest competitor, Budget, to collude on prices for truck rentals. U-Haul and Budget control more than 70 per cent of the ‘do-it-yourself’ one-way truck rental business in the United States. According to the FTC, if U-Haul had succeeded in its price-fixing plan, the two companies could have imposed higher prices on truck-rental consumers. The FTC’s complaint alleged that on several occasions between 2006 and 2008, U-Haul tried to increase rates for one-way truck rentals by privately and publicly communicating with Budget, the second-largest truck rental company in the United States. However, the complaint does not allege that U-Haul and Budget actually reached an agreement.

Criminal enforcement

Criminal antitrust investigations remain top priority for the DOJ. The number of individual and corporate defendants in cases filed in 2009 and 2010 remained almost the same, although the number of cases declined in 2010. In 2009, the DoJ filed 72 cases against 65 individuals and 22 corporations.⁵⁰ In 2010, 60 cases were filed against 63 individuals and 21 corporations.⁵¹ Despite the year-over-year decrease in case filings, 2010 was the second most active year for criminal case filings in the decade. At least two large cases carry over from prior years:

Recent indictments and pleas in air cargo investigations⁵²In the air cargo case, the DoJ investigated the air transportation industry for claims of price-fixing rates for international air shipments and surcharges from September 2001 until February 2006. To date, criminal fines of more than $1.8 billion have been imposed and 21 companies and 19 individuals have been charged. The $1.8 billion in fines is the most ever imposed in a US antitrust investigation and reflects the breadth and harm of the crimes detected. The following corporate fines were obtained just between August 2010 and 15 July 2011:

• $48 million fine against Singapore Airlines Cargo Pte Ltd;⁵³
• $73 million fine against All Nippon Airways Co Ltd;⁵⁴
• $40 million fine against China Airlines Ltd;⁵⁵
• $17.4 million fine against Polar Air Cargo LLC;⁵⁶ and
• $38 million fine against Northwest Airlines LLC.⁵⁷

Recent indictments and pleas in the Thin Film Transistor-Liquid Crystal Display Investigation⁵⁸

The Antitrust Division’s investigation into price fixing of thin film transistor-liquid crystal display (LCD) panels continued in 2010. The DoJ claims that the alleged conspiracies are among the largest and most far-reaching the Antitrust Division has ever detected - the worldwide market for LCD panels in 2006 was approximately $70 billion. The LCD investigation has to date resulted in criminal fines of more than $890 million to be paid by the seven LCD manufacturers who have pleaded guilty, including the following cases filed during FY 2010:

• $30 million fine against HannStar Display Corporation;⁵⁹ and
• $220 million fine against Chi Mei Optoelectronics.⁶⁰

Municipal bonds⁶¹

The DoJ also devoted attention towards uncovering and addressing antitrust violations in the municipal bonds market in 2010.The DoJ’s wide-ranging investigation into an alleged bid-rigging conspiracy in the municipal bond derivative market has so far resulted in nine guilty pleas and pending charges against nine other individuals and one broker. In December 2010, Bank of America agreed to pay a total of $137.3 million in restitution and disgorgement to state and federal agencies for its participation in a conspiracy to rig bids in the municipal bond derivatives market and as a condition of its admission into the DoJ’s Antitrust Corporate Leniency Programme. As a part of this global resolution, Bank of America entered into agreements with the US Securities and Exchange Commission, Internal Revenue Service, Office of the Comptroller of the Currency and state attorneys general, and also agreed with the Federal Reserve Board to address certain remedial measures. Achieving coordinated agreements with so many other government agencies is uncommon.

2011 may see even greater increases in government criminal enforcement with the investigations discussed above continuing and potential new cases in the pipeline, including auto parts, a product recently mentioned by Assistant Attorney General Varney.⁶²

Overlapping responsibilities of the agencies

Finally, with the budget crunch affecting governments at all levels, in 2011 the enforcers engaged on occasion in a dialogue concerning the shared responsibilities of the agencies in the antitrust area, whether different procedures and standards may apply at the two agencies, and the possible role of Congress in sorting this out for efficiency. While no change is imminent, Commissioner Rosch of the FTC has argued that section 5 of the FTC Act may be a better enforcement tool for pursuing certain types of conduct and has also called for certain types of health-care related cases to be the province of the FTC.⁶³ Assistant Attorney General Varney raised the questions of whether Congress might want to consider whether antitrust enforcement ought to reside at the DoJ and the FTC should handle consumer protection, and whether if different standards need to be satisfied by the agencies to prevail in some antitrust cases, congressional attention is merited on grounds of fairness.⁶⁴

Notes

1

Press release, DoJ, ‘Assistant Attorney General Varney Announces Departure from Antitrust Division’ (6 July 2011), available at www.justice.gov/atr/public/press_releases/2011/272802.htm.

2

Christine A Varney, assistant attorney general, DoJ, ‘Vigorous Antitrust Enforcement in This Challenging Era,’ Remarks as Prepared for the Chamber of Commerce, at 8 (12 May 2009), available at www.justice.gov/atr/public/speeches/245777.htm.

3

See id.

4

Christine A Varney, assistant attorney general, DoJ, ‘Vigorously Enforcing the Antitrust Laws: Developments at the Division,’ Remarks as Prepared for the Chamber of Commerce, at 1 (24 June 2011), available at www.justice.gov/atr/public/speeches/272536.pdf (‘June 24 2011 Varney Speech’).

5

FTC Website, ‘Commissioners,’ www.ftc.gov/commissioners/index.shtml (25 July 2011).

6

Unless otherwise noted, references to a year are to agency fiscal years (which end on 30 September).

7

FTC Bureau of Competition & DoJ Antitrust Division, Hart-Scott-Rodino Annual Report: Fiscal Year 2010, available at www.ftc.gov/os/2011/02/1101hsrreport.pdf (‘FTC/DoJ 2010 Annual Report’).

8

DoJ Antitrust Division, Workload Statistics (FY 2001-2010), available at www.justice.gov/atr/public/workload-statistics.html; FTC Competition Enforcement Database, available at www.ftc.gov/bc/caselist/nonmerger/index.shtml (last visited 25 July 2011).

9

Press release, DoJ, ‘NASDAQ OMX Inc and IntercontinentalExchange Inc Abandon Their Proposed Acquisition of NYSE Euronext After Justice Department Threatens Lawsuit’ (16 May 2011), available at www.justice.gov/atr/public/press_releases/2011/271214.htm.

10

FTC/DoJ 2010 Annual Report at 1. Only transactions meeting certain minimum thresholds need to be reported.

11

Id, fig 1 (higher only than 2009 (716) and 2003 (1,014)).

12

24 June 2011 Varney Speech at 1-2.

13

FTC/DoJ 2010 Annual Report at 4.

14

Id.

15

Id at 5, fig 2.

16

Id at 1-2. These transactions include transactions in which the second request was initiated in 2009.

17

Id at 2.

18

Id. The Dean Foods Company was resolved by consent decree on 29 March 2011.

19

Id.

20

Jia Lynn Yang, ‘US Companies Buy Back Stock in Droves As They Hold Record Levels of Cash,’ Washington Post, 7 October 2010, available at www.washingtonpost.com/wp-dyn/content/article/2010/10/06/AR2010100606772.html.

21

Press release, FTC, ‘Federal Trade Commission Seeks Views on Proposed Update of the Horizontal Merger Guidelines’ (20 April 2010), available at www.ftc.gov/opa/2010/04/hmg.shtm.

22

Press release, FTC, ‘Federal Trade Commission and US Department of Justice Issue Revised Horizontal Merger Guidelines’ (19 August 2010), available at www.ftc.gov/opa/2010/08/hmg.shtm.

23

DoJ Antitrust Division, ‘Antitrust Division Policy Guide to Merger Remedies’ (June 2011), available at www.justice.gov/atr/public/guidelines/272350.pdf.

24

Id at 16; see also Competitive Impact Statement, United States & Plaintiff States v Ticketmaster Entertainment Inc, No. 1:10-cv-00139, at 8-10 (DDC 25 January 2010), available at www.justice.gov/atr/cases/f254500/254544.htm. Christine Varney said in remarks to the Chamber of Commerce in the same month that DoJ issued the revised 2011 Merger Remedy guidance that ticket prices had declined and new competition was coming due in part to the provisions of the Ticketmaster consent decree. See 24 June 2011 Varney Speech at 9-10.

25

Antitrust Division Policy Guide to Merger Remedies, supra note 23, at 5.

26

Id at 12-18.

27

Id at 33-34.

28

See press release, FTC, ‘FTC Puts Conditions on Coca-Cola’s $12.3 Billion Acquisition of its Largest North American Bottler’ (27 September 2010), available at www.ftc.gov/opa/2010/09/coke.shtm.

29

Press release, DoJ, ‘Justice Department Allows Comcast-NBCU Joint Venture to Proceed With Conditions’ (18 January 2011), available at www.justice.gov/atr/public/press_releases/2011/266149.htm.

30

Press release, DoJ, ‘Justice Department Requires Google Inc to Develop and License Travel Software in Order to Proceed with Its Acquisition of ITA Software Inc’ (8 Apil 2011), available at www.justice.gov/opa/pr/2011/April/11-at-445.html.

31

See press release, FTC, ‘FTC Puts Conditions on Coca-Cola’s $12.3 Billion Acquisition of its Largest North American Bottler’ (27 September 2010), available at www.ftc.gov/opa/2010/09/coke.shtm.

32

See MJ Moltenbrey & Jasmine Watson, ‘The Antitrust Review of Americas 2011,’ Global Competition Review (2011), available at www.globalcompetitionreview.com/reviews/29/sections/102/chapters/1136/us-government-enforcement/.

33

DoJ, ‘Antitrust Division, Workload Statistics, FY 2001-2010,’ supra note 8.

34

Id.

35

FTC Competition Enforcement Database, supra note 8.

36

Id.

37

Id.

38

Complaint, United States v Adobe Systems, Inc, et al, No. 1:10-cv-01629 (DDC 24 September 2010), available at www.justice.gov/atr/cases/f262600/262654.htm.

39

Complaint, United States, et al v Blue Cross Blue Shield of Michigan, No. 2:10-cv-14155 (ED Mich 18 October 2010), available at www.justice.gov/atr/cases/f263200/263235.pdf.

40

Id paragraph 5.

41

Complaint, United States, et al v American Express, et al, No. 1:10-cv-04496 (EDNY 4 October 2010), available at www.justice.gov/atr/cases/f262800/262864.htm.

42

Senator Barack Obama, Statement for the American Antitrust Institute (27 September 2007).

43

Christine A Varney, assistant attorney general, DoJ, ‘Vigorous Antitrust Enforcement in This Challenging Era,’ Remarks Before the Center for American Progress, at 5 (11 May 2009), available at www.justice.gov/atr/public/speeches/245711.pdf.

44

Complaint, United States, et al v United Regional Health Care System, No. 7:11-cv-00030 (ND Tex 25 February 2011), available at www.justice.gov/atr/cases/f267600/267651.pdf.

45

Id 21.

46

See, eg, Statement of Chairman Leibowitz and Commissioner Rosch, FTC, In re Intel Corp, Docket No. 9341, at 1 (16 December 2009), available at www.ftc.gov/os/adjpro/d9341/091216intelchairstatement.pdf (noting that it is ‘more important than ever that the Commission actively consider whether it may be appropriate to exercise its full Congressional authority under Section 5,’ given courts’ ‘concern over class actions, treble damage awards, and costly jury trials’).

47

Id.

48

Press release, FTC, ‘FTC Settles Charges of Anti-competitive Conduct Against Intel’ (4 August 2011), available at www.ftc.gov/opa/2010/08/intel.shtm.

49

Press release, FTC, ‘U-Haul and Its Parent Company Settle FTC Charges That They Invited Competitors to Fix Prices on Truck Rentals’ (9 June 2010), available at www.ftc.gov/opa/2010/06/uhaul.shtm.

50

DoJ, ‘Antitrust Division, Workload Statistics, FY 2001-2010,’ supra note 8.

51

Id.

52

DoJ, Antitrust Division, ‘Spring 2011 Division Update: Criminal Program,’ www.justice.gov/atr/public/division-update/2011/ (last visited 25 July 2011).

53

Plea Agreement, Unites States v Singapore Airlines Cargo PTE Ltd, No. 10-CR-00322 JDB (DDC 8 February 2011), available at www.justice.gov/atr/cases/f267500/267545.htm.

54

Press release, ‘All Nippon Airways Co Ltd Agrees to Plead Guilty to Price Fixing on Air Cargo and Air Passenger Services’ (1 November 2010), available at www.justice.gov/atr/public/press_releases/2010/263643.htm.

55

Plea Agreement, United States v China Airlines Ltd, No. 10-CR-00263 JDB (DDC 3 November 2010), available at www.justice.gov/atr/cases/f264000/264061.htm.

56

Plea Agreement, United States v Polar Air Cargo LLC, No. 1:10-cr-00242-JDB (DDC 15 October 2010), available at www.justice.gov/atr/cases/f264100/264103.htm.

57

Plea Agreement, United States v Northwest Airlines LLC, No. 10-cr-204-JDB (DDC 27 August 2010), available at www.justice.gov/atr/cases/f262200/262275.htm.

58

Spring 2011 Division Update: Criminal Program, supra note 52.

59

Plea Agreement, United States v Hannstar Display Corp, No. CR 10-0498 SI (ND Cal 30 July 2010), available at www.justice.gov/atr/cases/f261300/261326.htm.

60

Plea Agreement, United States v Chi Mei Optoelectronics Corp, No. CR-09-1166 SI (ND Cal 8 February 2010), available at www.justice.gov/atr/cases/f255100/255193.htm.

61

Press release, DoJ, ‘Bank of America Agrees to Pay $137.3 Million in Restitution to Federal and State Agencies as a Condition of the Justice Department’s Antitrust Corporate Leniency Program’ (7 December 2010), available at www.justice.gov/opa/pr/2010/December/10-at-1400.html.

62

24 June 2011 Varney Speech at 17.

63

J Thomas Rosch, commissioner, FTC, ‘Theoretical and Practical Observations on Cartel and Merger Enforcement at the Federal Trade Commission,’ Remarks Before the George Mason Law Review’s 14th Annual Symposium on Antitrust Law, at 9 (9 February 2011), available at www.ftc.gov/speeches/rosch/110209georgemasoncartelsmergers.pdf; see also Thomas Catan, ‘This Takeover Battle Pits Bureaucrat v Bureaucrat,’ Wall Street Journal, 12 April 2011, available at http://online.wsj.com/article/SB10001424052748703784004576221100894386950.html.

64

Sara Forden & Jeff Bliss, ‘Congress May Want to Study Antitrust Overlap, Varney Says,’ Bloomberg (15 April 2011), available at www.businessweek.com/news/2011-04-16/varney-says-congress-may-want-to-study-antitrust-overlap.html; Brent Kendall & Thomas Catan, ‘Antitrust Chief Urges a New Look at Merger Reviews,’ Wall Street Journal (13 July 2011), available at http://online.wsj.com/article/SB10001424052702303812104576442190253842826.html.