Remarks as Prepared for Delivery
Thank you very much, James, for that kind introduction. And thank you for putting together this incredible gathering of thinkers. It’s a pleasure to be with all of you today.
I always find this event inspiring. Look around. We have so many enforcers from so many different parts of the world. We employ different legal regimes in different economies. Many of the rules and procedures are different. The people we represent speak different languages, eat different food, and all have their own individual hopes and aspirations.
But they all thrive when they have liberty in the marketplace. They all benefit from the competitive process. And they all suffer when competitive markets give way to domination by the powerful.
That gives the enforcers here today a common mission. We all work on behalf of our citizens to protect competition. In so doing, we prevent market power from threatening the individual liberty of our citizens, undermining the democracies they hold dear, and stifling their economic well-being. In the words of the United States Supreme Court, protecting competition is “as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.”[1]
Promoting competition plays a special role in capitalist democracies. Professor Eleanor Fox explained to the OECD in 2017 how democracies require competitive economies. Democracies, like markets, thrive on the individual’s “voice, participation, accountability, due process, freedom to compete, and a fair shot.”[2] And “[d]emocracy also includes a major negative goal likewise symbiotic with markets: [democracy] is against autocratic power and privilege and control by the few for the few.”[3]
Professor Fox perfectly described why we need competition, both to ensure thriving economies and thriving democracies premised on individual liberty. Absent competition, real people suffer real harms. And when conduct harms competition, it enables firms to acquire, exercise, or entrench market power. Consumers pay more for less, workers receive compensation that fails to match the value of their labor, business owners have fewer choices and the many other varied and unquantifiable benefits of the competitive process can suffer. Market power frustrates the functioning of competitive markets and threatens individual liberty.
That is why the Antitrust Division has redoubled its efforts to protect competition in the United States economy. This fall kicks off a historic litigation workload with multiple momentous matters going to court, including historic monopolization and merger cases. And we’re coming off important trial wins protecting consumers in the airline industry and authors in the publishing industry.
Put simply, the Antitrust Division is firing on all cylinders. But these civil trials are just one part of our work. Today, I’d like to cover a few more of the cylinders – areas beyond civil enforcement actions that are every bit as critical to our mission.
I. Criminal Enforcement
First, criminal enforcement of the antitrust laws is foundational to protecting competition. Congress made a violation of the Sherman Act a felony for good reason. Criminal antitrust violators take power and money from people who need it most, corrupting the competitive process at its core.
Our criminal enforcement is active. Since January 2022, our criminal matters have resulted in 11 corporate guilty pleas and 22 individual guilty pleas. And we’ve achieved seven convictions of individuals at trial.
Just like other areas of antitrust enforcement, we must adapt our tools to fit the market realities. We are. A few weeks ago, we entered into resolutions to resolve price-fixing charges in the pharmaceutical industry.[4] We required a familiar remedy: criminal penalties, here totaling $255 million. But to ensure that the markets will be free of this type of harm going forward, we also required that both companies divest a key product line on which they conspired to raise prices. This marks the first time the Division has secured structural relief in a criminal antitrust matter. Our resolution demonstrates that we will use the full scope of our criminal enforcement authority to remedy anticompetitive conduct.
That remains true in labor markets as well. Let me confirm: we are just as committed as ever to, when appropriate, using our congressionally given authority to prosecute criminal violations of the Sherman Act in labor markets. Stopping people and companies from agreeing to suppress wages or limit the opportunities of employees is fundamental to ensuring that labor markets are free markets.
II. Amicus Program
This focus on labor brings me to another critical area: our amicus program. Maximizing our ability to provide expert input to courts, and preserving our ability to prosecute problematic conduct, requires that we keep a keen eye on private and state litigation. When we think we have something to add, or when we care deeply about an issue, our amicus program steps in.
Our amicus program has been thriving. The Deslandes v. McDonald’s case is a great example. The Seventh Circuit just issued a terrific opinion that stands for the proposition that market power is just as pernicious when exercised over workers as it is when exercised over consumers.
The plaintiff, Leinani Deslandes, started as a fry cook at McDonald’s earning $7 an hour. But she worked her way up and was searching for a management position. And she got one. A manager at another McDonald’s offered her the job she wanted, with a pay bump.
But then the first store pointed to a no-poach agreement, and the job offer evaporated. For Ms. Deslandes, a no-poach agreement among competing employers barred the upward mobility she should be able to earn in America. An anticompetitive agreement took her power to choose where to work and to earn a fair return for her skills and labor.
Despite the alleged impact of this competitive restriction, the district court granted judgment in defendants’ favor. In basic terms, it ruled that because the no-poach agreement was part of the overall franchise agreement, the ancillary restraints doctrine removed it from per se condemnation.[5] The Division filed an amicus brief pointing out the errors in this approach. [6] We pointed the Seventh Circuit to the correct law on ancillary restraints, which requires that the restraint be subordinate and collateral to a separate, legitimate business collaboration and reasonably necessary to achieving the procompetitive objectives of the collaboration. And if the agreement doesn’t fit this test, we said, a horizontal no-poach agreement is per se unlawful.
The Seventh Circuit agreed that the district court erred. The court affirmed that horizontal no-poach agreements are per se unlawful if not ancillary.[7] And it made clear that ancillarity is a defense, on which defendants bear the burden.[8] Even more importantly, the court explained that simple increases in the output of a downstream product market cannot justify anticompetitive conduct in labor markets.[9]
We saw another important success in our amicus program in a recent monopolization opinion by the Tenth Circuit. In the Chase case, one company’s monopoly was threatened by a new entrant offering a competitive alternative. Instead of competing on the merits, the new entrant alleged, the monopolist responded by threatening to cut off any distributor who sold the new entrant’s product in addition to the monopolist’s.
But the district court granted summary judgment to defendants, concluding that plaintiffs had failed to meet all the requirements for refusals to deal.[10] The district court, in our view, misread the law. The court could be forgiven. In my experience, antitrust defendants have made a hobby of trying to expand refusal-to-deal law – including Trinko – so far beyond its actual holdings that it is becoming unrecognizable.
Our brief pointed this problem out. We explained that the law concerning refusing to deal with rivals does not also cover the imposition of anticompetitive conditions on customers or trading partners.[11] And the Tenth Circuit agreed. It held that the district court erred in extending a refusal-to-deal with rivals standard “outside that situation.”[12] The right approach, it said, instead requires looking at the “reality of the . . . market and the practical effect of [the defendant’s] conduct.”[13] That’s exactly right.
This opinion illustrates that Section 2 of the Sherman Act continues to play its critical role in protecting our economy from monopolization. Section 2 is fundamental to preserving a competitive economy. Too often, defendants try to evade it, arguing that narrow precedents effectively create broad immunity under monopolization law. That’s particularly true for Trinko. But that’s not the law. Especially in rapidly evolving markets susceptible to new forms of exclusionary conduct, the Sherman Act must remain keyed in on its function: fending off exclusionary conduct, in whatever form it takes.
III. Draft Merger Guidelines
The third cylinder I’d like to discuss today is merger enforcement. As explained in our draft merger guidelines, we are committed to enforcing the Clayton Act to prevent mergers that risk harming competition. The draft explains that competition plays out in many ways across our economy. We should use tools fit for purpose to identify mergers that might lessen it. But one thread carries through all the diverse competitive environments in our economy: when mergers lessen competition, they enable the exercise of market power that harms consumers, workers and other market participants.
Before I get into the details, let me share just a few published comments that have been made about the Antitrust Division:
- One prominent academic suggested that “the [n]ew [m]erger [g]uidelines” are “propaganda” that seek to engage in “‘legal smuggling’ that results in the conversion of transitory policy into permanent legal constraints.”[14]
- Another suggested that the administration has “sold the soul of competition to the devil, no question about that.”[15] Hopefully it was a good deal.
- And a U.S. Senator gave remarks that called the Antitrust Division’s front office a “garbage barge of ideologues.”[16] I didn’t realize that they still used garbage barges. I imagine one could hold a lot of ideologues.
You may think I’m reading mean tweets. But these comments aren’t actually about our recent draft guidelines. They’re about the 1982 merger guidelines and the comments reflect contemporaneous observations by observers — before social media, no less.
I’m happy to report that the commentary on our recent draft guidelines has been much more civil. I often take a spin through regulations.gov to see what folks are saying. I’m floored by the response. The feedback received in the comment period has been thoughtful and constructive. We welcome it, and are working on revisions to ensure that the final merger guidelines are the best and most effective document they can be.
I’m also amazed by the number of people, from outside the antitrust community, who wrote in, often using their real names. They tell their story, for everyone to see, about the impact of consolidation on their lives. They share how corporate market power has limited their options, depressed their wages, hurt their work and removed their opportunity. I’d like to spend some time here today on the draft guidelines’ approach to labor markets and the comments we’ve received.
The healthcare industry is fertile ground for these comments. We’ve heard from doctors, nurses, pharmacists, physician assistants and administrators. One person, who has practiced as a healthcare provider for over 40 years, told us how the “people delivering care are treated like widgets.”[17] “[W]ages,” she continued, “are reflecting that.”[18] As another person put it, after a series of acquisitions, the “primary reason why physicians are leaving medicine is not the patients, it’s the employers.”[19]
This reality hurts care. People have told us how, as a result of consolidation, “doctors tend to spend less time with patients”[20] and people have lost access to care in rural areas.[21] They’ve told us how their own “ability … to care for [their] patients declined sharply” after an acquisition.[22]
Merger enforcement is an important part of the solution. The draft guidelines take up this mantle. They explain that the agencies will evaluate the impact of a merger on labor as a stand-alone basis to challenge a transaction. This focus doesn’t break new ground. Competitive labor markets are foundational to the purposes of the antitrust laws. The Seventh Circuit’s opinion in Deslandes makes that clear. And yet, too often, we in the antitrust community haven’t focused on it. We’ve allowed consolidation in the economy that has made it harder for workers to bargain for higher wages or more opportunity. We’re changing that now.
I’m sure, throughout this conference, there will be debates about the guidelines.This is important. We need people steeped in the law to think critically about what we’re doing. But we should not lose sight of the broader purpose. The work we do affects real people. It changes their lives, their ability to make a living, the way they raise their kids.
IV. International Cooperation
The final cylinder is near and dear to much of this audience: international cooperation. Over the last two years, I’ve learned the immense value in reaching across the international aisle. Conduct often doesn’t stop at borders. Especially in the digital age, our interconnected world requires a global response to many competitive concerns.
For that reason, members of the division communicate with our international counterparts on a daily basis. When allowed by our laws, this coordination can extend to discussing the substance of enforcement matters, which benefits all involved. In the last year, division case teams cooperated with more than a dozen international counterparts on civil and criminal matters.
Cooperation really comes alive on the policy side – and it’s going to become even more important. Consider artificial intelligence. While this technology holds boundless potential, it’s sure to have huge competitive impacts. These risks transcend borders. So we’re engaging with our international colleagues to exchange knowledge about this rapidly developing area and its effect on competition law and policy.
Because we have so much to learn from each other, we’ve set up a number of formal channels for dialogue. For starters, the Division currently co-chairs the ICN Cartel Working Group, and serves as a mentor in the ICN Bridging Project. I currently chair the Working Party 3 of the OECD Competition Committee, which also provides a forum for global dialogue. Finally, the Division remains an active participant in G7’s program to address competition in digital markets.
And today, we have another initiative to announce. While you might have guessed my earlier focus on AI, the next one might be a surprise: soccer. In particular, the 2026 FIFA World Cup, which we, along with Mexico and Canada, have the privilege of hosting. This will be an exciting time for soccer fans across the continent. But large-scale events like this also create conditions for nefarious conduct that harms competition. The sheer number of goods and services provided for the games, from stadium construction to hospitality and tourism, raises the prospect of bid-rigging, price-fixing and other forms of collusion. That’s particularly true when work needs to be completed quickly. We’re going to make sure this conduct is stopped. Today, I’m excited to announce that we’ve formed a joint initiative with Mexico’s Federal Economic Competition Commission and Canada’s Competition Bureau to deter and detect collusion related to the World Cup. Joined by our international partners, we are cops on the beat.
I hope this division update offers you one takeaway. We at the Antitrust Division have a mandate to act. And we are, using every cylinder available.
Andrew, Zephyr, over to you. I look forward to your questions.
[1] N. Carolina State Bd. Of Dental Examiners v. FTC, 574 U.S. 494, 502 (2015) (quoting United States v. Topco Associates, Inc., 405 U.S. 596, 610 (1972)).
[5] Deslandes v. McDonald’s USA, LLC, 2022 WL 2316187, at *5 (N.D. Ill. June 28, 2022), vacated and remanded, 2023 WL 5496957 (7th Cir. Aug. 25, 2023); Deslandes v. McDonald’s USA, LLC, 2018 WL 3105955, at *7 (N.D. Ill. June 25, 2018), vacated and remanded, 2023 WL 5496957 (7th Cir. Aug. 25, 2023).
[6] Brief for the United States of America and the Federal Trade Commission as Amici Curiae in Support of Neither Party, Deslandes v. McDonald’s USA LLC, Nos. 22-2333, 22-2334 (7th Cir. Nov. 18, 2022), https://www.justice.gov/atr/case-document/file/1552391/download.
[7] Deslandes v. McDonald’s USA, LLC, — F.4th –, 2023 WL 5496957, at *2 (7th Cir. Aug. 25, 2023).
[9] Id. at *2 (“One problem with this approach is that it treats benefits to consumers (increased output) as justifying detriments to workers (monopsony pricing). That’s not right; it is equivalent to saying that antitrust law is unconcerned with competition in the markets for inputs, and Alston establishes otherwise.”).
[10] Chase Mfg., Inc. v. Johns Manville Corp., 601 F. Supp. 3d 911, 925-27 (D. Colo. 2022), aff’d in part, rev’d in part and remanded, 2023 WL 5341501 (10th Cir. Aug. 21, 2023).
[12] Chase Mfg., Inc. v. Johns Manville Corp., — F.4th –, 2023 WL 5341501, at *10 (10th Cir. Aug. 21, 2023).
[14] Louis B. Schwartz, The New Merger Guidelines: Guide to Governmental Discretion and Private Counseling or Propaganda for Revision of the Antitrust Laws?, 71 Calif. L. Rev. 575, 575-77 (1983) (emphasis added).
[15] Stephen D. Susman, Business Judgment v. Antitrust Justice, 76 Geo. L.J. 337, 337 (1987) (emphasis added); see also William E. Kovacic, The Modern Evolution of U.S. Competition Enforcement Policy, 71 Antitrust L.J. 377, 386-87 (2003) (collecting examples of similar statements).
[16] Kovacic, supra n.16, at 387 (quoting ABA Annual Meeting Emphasizes Competitiveness, International Trade, 53 Antitrust & Trade Reg. Rep. (BNA) 311, 315 (Aug. 20, 1987) (remarks of Sen. Metzenbaum)).
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