To be clear, in raising these claims, the point of this article is not to malign attorneys at the DOJ. Quite the contrary, the Antitrust Division is staffed with highly skilled attorneys devoted to combating the dangers of anticompetitive conduct. Examining enforcement flaws, however, is a necessary precursor to progress. As a former commissioner of the Federal Trade Commission has expressed, the “[s]tudy of enforcement successes and failures” guides “the healthy development of the antitrust laws.”
This article explores this lurking risk to U.S. antitrust enforcement. When private and public enforcers clash, regulatory oversight suffers. Part I details the multiple U.S. antitrust enforcers and their complementary functions. Part II explores the DOJ’s conduct in overlapping parallel litigation and gives examples where the DOJ compromised other enforcers’ regulatory efforts. These examples expose an operational flaw in the U.S. antitrust enforcement design that contributes to underenforcement. Finally, Part III paves a path forward. It articulates a set of best practices to realign private and public antitrust enforcement efforts. It then urges the adoption of an all-enforcer working group unified toward this end.
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