DOJ’s Antitrust Division is headed by an Assistant Attorney General, who is assisted by several Deputies, referred to as DAAGs (Deputy Assistant Attorneys General). In one presentation, the various DAAGs presented their view on the Division’s enforcement efforts, both civil and criminal. Continuing our series on the 2016 Spring Meeting, Allen summarizes their presentation so you can hear what our enforcers are saying.
In a session presented by the Federal Civil Enforcement Committee, the various Deputy Assistant Attorneys General (DAAG) of the Antitrust Division provided a deep dive into the happenings at the Department of Justice’s Antitrust Division over the last year.
The Division had a busy year. The increase in the Division’s headcount, now back up to 700 and a current announcement seeking 14 additional attorneys in Civil Enforcement, serves as an indicator of the Division’s increased activity. As compared to the past, the Division works on a cross-office basis more frequently now, too. The Deputies reported an ongoing merger wave—nearly a 36 percent increase in HSR transactions between 2013 and 2015—but also reported that the number of second requests, as a percentage of total HSR transactions, slightly decreased in the same period. In 2013, 1.7 percent of mergers triggered a second request versus 1.5 percent in 2015. Of course, the decrease in second requests does not reflect a policy change.
The panelists emphasized that the Division’s market analyses are not static. It views each market anew and through the prism of each reported transaction, a common theme not only in this session, but throughout the spring meeting. In support of that theme, the panelists pointed to the different outcomes in the Comcast/Time Warner proposed merger, which was blocked outright, and the ATT/DirecTV merger, which the DOJ approved. While on the surface both were proposed mergers of video providers, the Division doesn’t look only at the surface-level market. Instead, it analyzes all levels of the involved markets, such as inputs, distribution, and relevant products, to investigate potential anti-competitive effects. In those two deals, the DAAGs noted that the distribution markets, specifically the market for broadband distribution in the Comcast/Time Warner proposed merger, dictated different outcomes.
The DAAGs stated that the principle applies to geographic markets as well, as exemplified by Delta’s proposed sale of slots at Newark Liberty International Airport to United Airlines. There, the Division didn’t only analyze whether the companies competed on a particular route, but looked at the use of the slots, which can service any route, to determine whether the sale would deliver to United Airlines a monopoly on service in and out of Newark.
From the Division’s perspective, criminal enforcement had an up and down year. On the one hand, fines nearly tripled in 2015, reaching $3.63 billion, and the Division won a higher percentage of corporate convictions than in previous years. However, juries acquitted individuals at a rate higher than in the past. The Deputies cautioned that attorneys representing individuals in criminal enforcement matters shouldn’t expect softer plea deals, however, but they should be prepared for a shorter, simpler trial presentation from the government—one of the Division’s key take-away from those acquittals according to Brent Snyder.
The so-called Yates Memo served as another point of interest. On Sept. 9, 2015, Deputy Attorney General Sally Yates issued a memorandum on Individual Accountability for Corporate Wrongdoing, in which she announced the DOJ’s policy to vigorously pursue individuals who perpetrate corporate crimes. While perhaps the memorandum didn’t serve as a sea change for the Antitrust Division—since 2009, the Division has prosecuted on average two individuals for every one corporation—the memorandum does anchor the Division’s future enforcement activity, and the Division did proclaim an intent to enforce individual accountability more frequently on the civil side by seeking financial damages against responsible individuals, weighing the individual’s involvement and seniority.