November 13, 2020

DOJ antitrust chief Makan Delrahim announces enhancements to agency’s enforcement muscle

Assistant Attorney General Makan Delrahim used the stage of the ABA’s Section of Antitrust Law’s “The Future of Antitrust” Fall Forum on Nov. 12 to announced three new developments that he says will “help improve transparency and the future of enforcement” in the Department of Justice’s Antitrust Division.

First, the division has issued new guidance on the use of arbitration to resolve Antitrust Division matters. The updated and supplemental guidance includes case selection criteria to help identify division cases that would benefit from the application of arbitration.  “This guidance reflects the Antitrust Division’s experience using arbitration to resolve a civil antitrust lawsuit challenging Novelis’s proposed merger with Aleris Corporation,” Delrahim said.  The updated document also contains guidance regarding the arbitration agreement, the decision whether to file a complaint in federal district court before the matter is referred to arbitration, arbitrator selection, arbitrator compensation and cost shifting and the training of Antitrust Division staff on the use of arbitration.

Second, the division launched a new Small Business Portal that will provide targeted antitrust information and guidance to small business owners. “The portal will improve accessibility and transparency for folks who are interacting with the antitrust laws for the first time, on a do-it-yourself basis,” Delrahim said.

The new “Antitrust and Your Small Business” section contains user-friendly guidance and links to DOJ materials on antitrust “hot topics” relevant to small businesses, including:

  • tips on identifying potential anticompetitive conduct that harms small businesses
  • tips on avoiding and reporting criminal antitrust violations
  • requirements for applying to the criminal leniency program
  • tips on avoiding antitrust issues related to hiring and management
  • materials on COVID-19 and disaster relief
  • guidance on information sharing and trade associations.

“I am gratified that we are addressing the needs of small businesses in a targeted way.  As we have repeatedly said, the antitrust laws are not solely applicable to the biggest businesses, but are meant to protect consumers, workers and small businesses as well,” Delrahim said. “Given these unprecedented times and the increased visibility of antitrust in the business community, the Antitrust Division hopes these resource pages will help small business owners better understand what the antitrust laws are, examples of conduct they prohibit and ways to report potential violations.”

The third new development is the expansion of the Procurement Collusion Strike Force (PCSF), a year-old partnership among the Antitrust Division, 13 U.S. attorneys general offices, the FBI and four federal offices of inspectors general. The strike force was formed to bolster the division’s efforts to protect the public from collusion. The PCSF is expanding to add two new partners: Department of Homeland Security’s Office of Inspector General and the Air Force Office of Special Investigations. Nine U.S. attorneys are being added to PCSF, as well as agents from national law enforcement partners. Delrahim also named Daniel Glad, an assistant chief in the DOJ’s Chicago office, as the first permanent director of the PCSF, and Sandra Talbott, also from the DOJ’s Chicago office, as the assistant director.