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    Antitrust Law Journal

    Volume 85, Issue 2

    Playing Nicely with Others: How and Why Antitrust Enforcers Should Work Together

    Christine P Bartholomew

    Oct 30, 2023

    98 min read

    Antitrust Antitrust Litigation & Enforcement Antitrust Policy & Legislation DOJ Antitrust Enforcement FTC Antitrust Enforcement Private Antitrust Litigation State Antitrust Enforcement

    Summary

    • The unique tripartite structure of U.S. antitrust enforcement (federal, state, and private actors) is a strength. When enforcers are aligned, they are stronger than the sum of their parts; when one player lacks the political or financial will to pursue a particular case, another can step in.
    • But in practice, antitrust enforcers do not always play well with each other. This article focuses on when the symbiotic relationship turns parasitic. Specifically, it analyzes when government enforcers undermine private or other governmental efforts—at a cost to consumers.
    • This article proposes best practices aimed at harmonizing all enforcers’ efforts to reach functioning, competitive marketplaces.
    Playing Nicely with Others: How and Why Antitrust Enforcers Should Work Together
    Luis Cagiao Photography via Getty Images

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    With the Clayton Act, Congress intended a synergistic relationship among public and private antitrust enforcers that would maximize the consumer protection goals underlying the Sherman Act. Commonly, private enforcement follows governmental investigations by federal and/or state agencies. However, as public enforcement has declined, private enforcement has shouldered a greater enforcement load. Antitrust class actions frequently expand nascent government cases: they can reach additional wrongdoers or wrongdoing, revive investigations that government enforcers dropped, and even lead the charge in some actions.

    Yet lately, the relationship between antitrust enforcers is often acrimonious. This article focuses on one source of this rift: namely, conduct by the Antitrust Division of the Department of Justice that leaves other enforcers battling more than just defendants. This conflict jeopardizes the very goals Congress intended.

    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.

    Continue reading the full text of this article in PDF format.

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