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U.S. Department of Justice Antitrust Division A Message from the AAG opportunities we have in our began a review of digital platforms positions of public trust. All of us and engaged in powerful public have taken a solemn oath to support advocacy regarding the importance and defend the Constitution, and we of properly applying antitrust law in strive each day to discharge our this area. duties faithfully as employees of the Department of Justice. The Division’s criminal program has similarly been fruitful. In November In these times, the Antitrust Division 2019, we launched the government- remains steadfast in its mission to wide Procurement Collusion Strike protect competition for the benefit Force (PCSF). The Division’s criminal of consumers. As I write this, most of trials resulted in two guilty verdicts our employees are working remotely this fall and, in March 2020, we following guidance in March from secured the largest ever antitrust Makan Delrahim the U.S. Office of Management and fine or penalty imposed in the Assistant Attorney General Budget. Though not without their prosecution of a purely domestic Unlike previous newsletters released challenges, these difficult cartel. And just three weeks ago we during the ABA Spring Meeting, the circumstances have not stopped our announced the first set of Division shares this “Spring” Update attorneys, economists, and support indictments in the Division’s broiler for 2020 during extraordinarily staff from advancing the Division’s chicken cartel investigation. This challenging times. The spread of mission with continued dedication newsletter features these COVID-19 has affected all aspects of and resourcefulness. I am immensely accomplishments and many more. our daily lives, as we face both the proud of our employees, and At the outset, I would like to focus on public health and economic effects of appreciate the chance this a few of our top priorities and offer a the virus. As many of us do our part newsletter provides to report and preview of what is to come. to prevent the spread of COVID-19, reflect on what we have however, we were also gripped by accomplished together. COVID-19 Response the horrifying death of Mr. George To address one of the most Over the past year, the Antitrust Floyd in Minneapolis. My heart is immediate challenges facing our Division tackled a number of with the peaceful demonstrators nation, the Antitrust Division has important mergers on behalf of who honor the memory of Mr. Floyd taken swift action in order to help American consumers. For example, by seeking justice and the reforms fight the spread of COVID-19. In we secured an important set of necessary to prevent similar events addition to moving most of our divestitures to address vertical and in the future. employees to telework quickly, we horizontal harm in UTC/Raytheon, started conducting meetings and Despite these challenging times, negotiated significant structural depositions by video and these events have served to relief to facilitate the introduction of teleconference, accepting electronic emphasize the resiliency of our a new wireless competitor in T- filings of Hart-Scott-Rodino (HSR) nation. They also underscore the Mobile/Sprint, and prevailed in a notifications, and preparing to critical nature of our work as federal first-of-its-kind arbitration appear remotely in courtrooms. The prosecutors and the precious proceeding in Novelis/Aleris. We also Antitrust Division has also been 1
U.S. Department of Justice Antitrust Division Update 2020 working closely with other federal program also has taken the lead The Division’s innovations were not agencies, including the Department within the International Competition limited to internal processes. In of Health and Human Services, Network (ICN) and other multilateral February 2020, the Antitrust Division Department of Defense, the Federal organizations to encourage the engaged in the first-ever arbitration Emergency Management Agency, exchange of rapidly developing in a merger challenge in Centers for Medicare & Medicaid information; these efforts have Novelis/Aleris, pursuant to the Services, Department of Agriculture, allowed the Division to stay updated Division’s authority under the and the White House Coronavirus on how COVID-19 has affected Administrative Dispute Resolution Task Force, to ensure critical competition enforcement around the Act of 1996. The use of arbitration in products and medical supplies reach world. this instance provided greater those who most need them. certainty to the parties and allowed Innovation in Merger Review the Antitrust Division to resolve the We also have issued two joint As we adjust in these times, I take dispositive issue of market definition statements with the Federal Trade pride in other achievements the efficiently and effectively, Commission (FTC) in an effort to Division attained in the spirit of maximizing our enforcement introduce greater certainty in these adaptation and innovation. In resources, saving taxpayer resources, uncertain times. The first details the September 2018, I pledged that the and providing the merging parties types of collaborative activities Antitrust Division would modernize with greater certainty. The among competitors that are its merger review process with an arbitration hearing was held over a consistent with the antitrust laws eye toward expediting review period of ten days (including some and outlines an accelerated business without compromising its quality. partial days) in the Antitrust review process. Only 11 days later, The Division consistently has met or Division’s new Anne K. Bingaman the Division issued our first business exceeded our goal of completing the Auditorium and Lecture Hall in the review letter related to the investigative phase of merger Liberty Square Building in pandemic—5 days after receiving the reviews and providing feedback to Washington, D.C. Eleven fact request—pursuant to this expedited parties within six months, as long as witnesses and three expert witnesses process. The letter explained that, the parties expeditiously cooperate testified in the proceedings. The provided certain conditions were and communicate with us. Through arbitrator ultimately agreed with our met, the Antitrust Division would not early 2020, we successfully reduced conception of the market definition challenge the collaborative efforts of the average time in all merger and ruled in March 2020 for the companies working with federal investigations from filing an HSR to Division within the agreed two-week authorities to expedite and to the Division notifying the parties of time frame. The proposed final increase the distribution of our position to 5.4 months. In merger judgment will require Novelis to important medical equipment. In our investigations that resulted in a divest Aleris’s aluminum auto body second joint statement with the FTC, challenge, whether litigated in court sheet operations in North America. we reaffirmed the importance of or otherwise resolved, the average The experience proved that, in the competition for American workers time to notification was reduced to proper circumstances, antitrust and expressed our commitment to 5.7 months. agencies can harness the strengths of curbing anticompetitive conduct by arbitration and ensure the benefits those who exploit the pandemic by As part of the reforms I announced in 2018, we also implemented steps to of a speedy and sound resolution for entering into unlawful wage-fixing or the public. no-poach agreements. introduce significant transparency into our processes, including The Division also obtained pivotal Consistent with the Department’s publishing on our website new relief in T-Mobile’s acquisition of guidance, the Antitrust Division also models for timing agreements and Sprint, which has proved particularly has prioritized the criminal for voluntary request letters. These significant during the pandemic given investigation and prosecution of reforms collectively have provided consumer demand for mobile competition cases related to COVID- greater certainty and predictability connectivity. The Division’s remedy 19. Through the Antitrust Division’s for mergers and acquisitions that are will safeguard competition in the PCSF and other tools, we will hold reviewed by the Division. Even with wireless industry by providing accountable individuals and the constraints imposed by the important divestitures that will companies that use the pandemic as COVID-19 pandemic, I am optimistic facilitate the entry of Dish as a fourth an opportunity to engage in criminal that these reforms will have lasting nationwide competitor. This relief antitrust violations. Our international effects. stands to expand output and 2
U.S. Department of Justice Antitrust Division Update 2020 expedite the introduction of 5G The Antitrust Division also has been jointly issued a draft of revised networks for American consumers by hard at work safeguarding Vertical Merger Guidelines earlier ensuring the use of vast amounts of competition in industries that most this year, marking the first revamp of currently unused or underused directly affect American consumers. guidelines on this topic in over three spectrum. Dish will have immediate The Division’s criminal trials resulted decades. In so doing, we withdrew access to the New T-Mobile’s in two guilty verdicts this fall against the DOJ’s 1984 Non-Horizontal network, as well as access to low- executives whose actions have Merger Guidelines, which the band spectrum to facilitate its cheated consumers in the food and Division believes no longer reflects network buildout. Given its history as financial markets. These outcomes modern economic experience. Since a disruptive, innovative company, are a testament to the Division’s we first introduced the draft Vertical Dish will be well positioned to take commitment to holding executives Merger Guidelines for public advantage of this remedy and accountable for antitrust violations. comment in January, the Division has accelerate its entry as a nationwide In March 2020, the Division also received a great breadth and depth competitor. secured against a manufacturer of of comments from diverse groups. generic drugs a $195 million criminal We are grateful for the level of Launch of the PCSF penalty—the largest ever antitrust engagement on this important topic Our criminal program has been fine or penalty imposed in the and plan to finalize the guidelines as similarly effective. In November prosecution of a purely domestic soon as possible in the coming 2019, the Antitrust Division launched cartel. In addition, the Division month. It bears repeating, however, the Procurement Collusion Strike obtained a $100 million criminal that although the draft Vertical Force (PCSF), an interagency penalty in April 2020 from an Merger Guidelines describe the partnership of law enforcement oncology group charged with current enforcement practices of the personnel and prosecutors across the conspiring to allocate medical and agencies, the Antitrust Division will Department of Justice leading the radiation oncology treatments. not hesitate to bring appropriate national fight against criminal cases to the courts when necessary antitrust violations and other crimes New Frontiers in Competition to safeguard competition and affecting public procurement. The Advocacy advance consumer welfare. Antitrust Division is grateful both for Finally, the Division’s competition the support of our law enforcement advocacy efforts have been highly * * * partners including the United States successful. Our amicus program Despite the uncertainty in this Attorneys across the nation, and for exceeded prior expectations by filing moment, I am heartened by how we the overwhelmingly positive a record 24 briefs in 2019. Although have responded in the fight against response the launch has received many briefs focused on disputed COVID-19 and how peaceful from state and local agencies. Over areas of law where the answer to a protestors have pursued justice in 50 federal, state, and local particular legal question is not clear- memory of Mr. Floyd. I am confident government agencies have already cut, we have earned a 12-0-1 record that we will conquer the challenges sought training and assistance from with 11 cases pending. The program ahead, and remain convinced that the PCSF, as well as opportunities to is a testament to how the Division one of the key safeguards of a work with the PCSF on investigations. can leverage our limited resources vibrant and resilient economy is So far, the PCSF has led over a dozen for enforcement in an efficient way: effective antitrust enforcement— interactive virtual training programs Our amicus brief in Seaman v. Duke, enforcement that can adapt to for approximately 2,000 criminal a no-poach case, led us to obtain a rapidly changing conditions. As we investigators, data scientists, and consent decree while expending less embark onto the second half of this procurement officials. Over a third of than 1% of the resources that we coming year, the Antitrust Division the Antitrust Division’s current would typically use to investigate a will continue to monitor pandemic investigations relate to public similar matter. Thanks to the developments and guidance, but do procurement, and the PCSF marks an experienced and talented attorneys so without compromising on our important effort to marshal in the appellate section, we mission to pursue violations of the enforcement resources to tackle anticipate another prolific year in antitrust laws on behalf of American these cases. Several grand jury 2020. consumers. investigations already have been opened as a direct result of the work The Antitrust Division and the of the PCSF. Federal Trade Commission also 3
U.S. Department of Justice Antitrust Division Update 2020 This Spring a Decade Ago In reflecting on recent New Approaches in the New Decade approaches, we also took a look As we enter the 2020s, the Antitrust so protects competition even after the at what the Antitrust Division Division reflects on new approaches to terms of a consent decree expire. These accomplished a decade ago. antitrust enforcement over the past few remedies also have the added benefit In April 2010, the Antitrust years. of ensuring ongoing competition Division and the Federal Trade without government intervention or Historic Arbitration of a Merger Commission issued a draft of the regulation; the market and its Dispute Horizontal Merger Guidelines to participants, rather than the Antitrust the public. After taking public In March 2020, the Department of Division, should drive pricing and comments into account, the Justice prevailed in a first-of-a-kind innovation decisions. The Antitrust agencies issued the revised arbitration, which resolved a civil Division recognizes that behavioral Horizontal Merger Guidelines in antitrust lawsuit challenging Novelis’s remedies are inherently regulatory and August 2010. proposed merger with Aleris thus undermine these aims. Corporation. This marks the first time In the same month, the The Division has also sought structural Department of Justice presented the Antitrust Division has used its remedies to address vertical concerns in authority under the Administrative the John Sherman Award to situations where the merged firm Professor Robert Pitofsky in Dispute Resolution Act of 1996 (5 U.S.C. would have the incentive and ability to § 571 et seq.) to resolve a matter. The recognition of his lifetime harm competition. For example, the contributions to the protection of new process could prove to be a model Antitrust Division secured important for future enforcement actions, where American consumers and the divestitures in March 2020 in the preservation of economic liberty. appropriate, to introduce greater merger between United Technologies certainty for merging parties and to The award was presented during Corporation (UTC) and Raytheon a celebration of the Antitrust preserve taxpayer resources without Company (Raytheon), two of the compromising the Antitrust Division’s Divisions’ 120th Anniversary in primary suppliers of certain military the Great Hall of the Robert F. enforcement mission. systems and components to the Kennedy Department of Justice As a result of the ruling, Novelis must Department of Defense (DoD). To Building. The Department of divest Aleris’s entire aluminum auto address vertical and horizontal antitrust Justice looks forward to body sheet operations in North concerns, the parties agreed to divest presenting the Sherman Award America, which will fully preserve three separate business units. to Judge Douglas H. Ginsburg this competition in this important industry. Raytheon/UTC is discussed in further fall. See page 12 to learn more. In addition, under the terms of the detail on page 21. In May 2010, the Department of arbitration agreement between Merger Review Process Justice, the Federal Trade defendants and the Department, Modernization Bearing Fruit Commission, and the U.S. Patent Novelis must reimburse the and Trademark Office held a joint Department for its fees and costs In September 2018, AAG Delrahim public workshop on the incurred in connection with the outlined a series of reforms that the intersection of patent policy and arbitration. See page 20 for more on Antitrust Division would undergo to competition policy and its Novelis. modernize the merger review process. implications for promoting As a benchmark to measure success, he Focus on Structural Remedies innovation. As then-AAG committed the Division to resolve most Christine Varney remarked, “We The resolution in Novelis is one of the merger investigations within six months will benefit from working most recent examples of the Antitrust of filing—provided that merging parties together with our PTO and FTC Division’s focus on structural remedies. cooperate expeditiously throughout the colleagues to ensure that the The Division has focused on structural process. United States is using patent and remedies in recent years because doing 4
U.S. Department of Justice competition policy that Antitrust Division Update 2020 maximizes the potential for innovation, which is the primary driving force of economic growth As part of those reforms, the Antitrust The PCSF is an interagency partnership in the 21st century.” Division published a model timing including prosecutors from the agreement, which, in addition to Antitrust Division and 13 U.S. Attorneys’ providing transparency, significantly Offices, along with agents from the FBI changed how the Division approaches and partner Offices of Inspector Second Request investigations. The General. The Strike Force was created Getting to Know the DAAGs Division also published for the first time to deter, detect, and prosecute Parties with matters in front of a model voluntary request letter so antitrust crimes and related fraudulent the Antitrust Division can visit merging parties can anticipate and schemes that undermine competition in the Division’s website to see the collect the information and documents government procurement, grant, and biographies of the Principal the Division needs. Getting that program funding. Deputy Assistant Attorney information to the Division during the General Bernard (Barry) Nigro, Since its launch, the PCSF has generated initial waiting period often allows the Deputy Assistant Attorneys an overwhelmingly positive response merging parties to avoid a Second General Rene Augustine from all corners of the procurement Request or to narrow the scope of a (international and policy), world. Over 50 federal, state, and local Second Request. Michael (Mike) Murray government agencies have reached out The Division has consistently been to the PCSF seeking outreach training, (appellate, litigation, merger and meeting or beating AAG Delrahim’s assistance with safeguarding their conduct investigations), Alex pledge of completing the investigation procurement processes, and Okuliar (litigation, merger and phase of our merger reviews and opportunities to work with the PCSF on conduct investigations), Richard informing the parties of the Division’s investigations. Indeed, the Division’s Powers (criminal enforcement), position within six months. Through PCSF attorneys had already led over and Jeffrey (Jeff) Wilder early 2020, in all merger investigations, thirty in-person outreach presentations (economics). the average time from the merging in 13 states and D.C. before the March To know them better, we asked parties filing an HSR to the Division 2020 Presidential declaration of a the Deputy Assistant Attorneys notifying the parties of the Division’s national emergency for COVID-19. Since General for two truths and a lie. position is 5.4 months. In merger then, the PCSF has led over a dozen Find the answers upside down investigations resulting ultimately in a interactive virtual training programs for on the next page. challenge, whether a litigated court approximately 2,000 criminal challenge or a remedy, the average investigators, data scientists, and Barry: time to notification is 5.7 months. procurement officials representing a) I have been employed every nearly 500 federal, state, and local year since 4th grade. Although not every merger can be b) I sailed bareboat in the agencies. The PCSF has already resulted resolved in six months, the Division has Lesser Antilles with Chairman in the opening of several grand jury taken concrete steps to reduce delay to Jerome Powell and a Jesuit. investigations. the extent possible. As always, the c) I once played golf with merging parties themselves can Enhancing Corporate Compliance President Clinton at Army exercise significant control over the Navy Country Club. In July 2019, the Antitrust Division timing of the merger review process. announced a new approach to Rene: The Launch of the Procurement corporate compliance programs in a) I was an extra in the movie Collusion Strike Force criminal investigations. The approach is Saw 4. based on a recognition that strong b) I took a covered wagon On November 5, Assistant Attorney corporate compliance programs are an across part of the Oregon General Delrahim announced the important part of the effort to deter Trail. launch of the Procurement Collusion and detect antitrust crimes. After a c) I have two pro athletes in my Strike Force (PCSF), with the support of public roundtable and careful immediate family. Deputy Attorney General Jeff Rosen. 5
U.S. Department of Justice Mike: Antitrust Division Update 2020 a) I walked the runway as a model for my high school prom fashion show. deliberation, we concluded that we program, described further on page 28, b) My father has four brothers could do more to incentivize antitrust bolsters the Division’s primary and four sisters, all over six compliance efforts by recognizing investigative and litigation efforts, feet tall, including the investments in pre-existing compliance allowing the Division to share its women. programs. expertise and experiences with c) I have helped prosecute generalist courts and judges—some of pirates. First, the Antitrust Division announced whom may have limited experience it would consider and allow for Alex: with antitrust laws themselves. The crediting corporate compliance at the a) I am an avid skier and have amicus program facilitates this charging stage in criminal antitrust been heli-skiing down important information sharing at investigations. When considering glaciers in Western Canada. comparatively low cost. For example, corporate charges, Division prosecutors b) I was nearly thrown over a the full cost (including investigation, now consider compliance together with wall by a bull while running litigation, and resolution phases) of the all the other factors under the with the bulls in Pamplona, Division’s case against Atrium Health’s Principles of Federal Prosecution and Spain. anticompetitive steering restrictions the Principles of Federal Prosecution of c) The first gift my wife gave was at least 100 times what the Division Business Organizations, as well as our me after we met was a spent in connection with its statement Corporate Leniency Policy. The skydiving trip. of interest, motion to intervene, and potential credit is resolving the matter Richard: consent decree in Seaman v. Duke by a deferred prosecution agreement, a) I was born in Germany. University regarding employee no- rather than by guilty plea. b) I made a documentary film poach agreements. Notably, both cases Second, the Division announced involved allegations of Sherman Act that screened at a film revisions to the Justice Manual violations in the healthcare industry, festival. reflecting this policy change and and both cases reached the same result c) My brother is a fighter pilot. updated the Antitrust Division Manual from an enforcement perspective. Jeff: to address evaluation of compliance While the Division maintains its robust a) I used to run along the Tigris programs, selection of monitors, and investigative and litigation efforts, the when stationed in Baghdad. Division processes for recommending amicus program can be a highly b) I was born in Little Rock, indictments and plea agreements. efficient use of resources in appropriate Arkansas. matters. c) I taught myself to pick locks Finally, for the first time, the Division published a guidance document that The Antitrust Division also filed its first as a child. focuses on evaluating compliance amicus brief with several State b; Alex a; Richard c; Jeff a programs at both the charging and Attorneys General in the class action Answers: Barry c; Rene a; Mike sentencing stages of criminal antitrust case of Stromberg v. Qualcomm, Inc. in investigations. This guidance document June 2019. In their brief to the Ninth is intended to assist Division Circuit, the Division and the States prosecutors in their evaluation of argued that the district court’s compliance programs, and to provide certification of a nationwide class of greater transparency of the Division’s indirect purchasers under California’s New Front Office Faces compliance analysis. Cartwright Act was erroneous and Alex Okuliar undermined state and federal policies. Deputy AAG for Civil Enforcement Amicus Program The Division continues to deploy its Promoting International Due Alex Okuliar joined the Division amicus program as a cost-effective Process after nearly five years as partner means of ensuring the proper in the antitrust group of an Advancing an initiative envisioned and implementation and development of international law firm. Alex is a developed by the Division, in May 2019, federal antitrust laws. The amicus 6
U.S. Department of Justice former trial attorney in the Antitrust Division Update 2020 Technology and Financial Services Section and attorney advisor to FTC Commissioner the Division worked successfully with The successful launch of the CAP Ohlhausen. He has been the international competition represents a significant milestone for practicing antitrust law for enforcement community and the global competition-law enforcement. roughly twenty years with a International Competition Network Thus far, over 70 competition agencies, focus on merger advocacy and (ICN) to launch what is now the including almost every major antitrust litigation in the “Framework on Competition Agency competition agency in the world, have technology and media sectors. Procedures” (CAP). The CAP is the first signed on to the framework, and the Alex started an online media multilateral agreement on antitrust Division expects that number to company with friends in college among antitrust enforcement agencies continue growing. It remains a top and sold it shortly before going focused on promoting fundamental due priority for the Division to ensure to law school. He is a graduate of process, such as fair and effective China’s new agency, SAMR to be a Vanderbilt University Law School procedures, in competition signatory to the CAP. See page 27 and and the Wharton School of the enforcement. CAP member agencies AAG Delrahim’s speech to the Council University of Pennsylvania. around the world, who don’t need to be on Foreign Relations to learn more on ICN members, commit to adhering to the CAP. Eyitayo “Tee” St. Matthew- principles such as non-discrimination, Daniel transparency and predictability, The Judgment Termination Initiative New York Office Assistant Chief confidentiality protection, appropriate Prior to 1979, many consent decrees Eyitayo “Tee” St. Matthew- notification of allegations, written were perpetual, which make them Daniel served as Counsel to the enforcement decisions, and availability prime examples of extended regulation Assistant Attorney General until of independent review of decisions. without purpose. In recognition of the the end of April 2020, where her work focused on criminal Goods or Services Involved in the Judgment Termination Initiative antitrust matters including international cartel enforcement Down: and compliance. From June 2015 1. Alabama court tosses overboard to March 2019, Tee served as a the decree for netting this fish. trial attorney in the Division’s 2. Save your quarters. Decree Washington Criminal II Section. regulating coin-operated ____ play She joined the Division in June their last tracks. 2015 from private practice in the 3. Court doesn’t slip up in dismissing Brussels, New York, and this fruit decree. Washington, D.C. offices of 7. Court pulls the rug out. international law firms, where 9. This seafood decree is canned by she counseled clients on a range the court. of civil and criminal antitrust 10. Delaware court detonates this issues. Tee is dual-qualified in 107-year-old decree. New York and in England and Across: Wales, and is a graduate of 4. PETA didn’t object to this pelt Harvard Law School and the decree going out of fashion. University of Cambridge. She 5. Ohio court strikes this decree from currently serves as the Acting the books with no room to spare. Director of the Procurement 6. Going down. Decree now “Out of Service” for carrying grain. Collusion Strike Force and was 8. Texas court shells this nutty 46-year-old decree. recently appointed Assistant 11. Decree pushing up daisies after court buries it. Chief in the New York Office. 12. The day the ____ roll decree died. 13. Court thaws this 85-year-old decree. Find the answers on page 28. 7
U.S. Department of Justice Elyse Dorsey Antitrust Division Update 2020 Counsel to the AAG Elyse Dorsey serves as Counsel to the Assistant Attorney General. dynamism of markets, the policy of the terminate a decree. Terminated Elyse advises the AAG on a wide Antitrust Division is now generally to decrees range from obsolete industries array of legal and policy matters, limit any behavioral relief stemming (like music rolls) to seminal antitrust primarily relating to the from consent decrees to ten years. cases (like Standard Oil and Brown Division’s appellate and amicus Shoe). Some of the older decrees The Judgment Termination Initiative is brief programs, international subject to this review include the the Division’s effort to end perpetual work, and IP and technology- Paramount decrees that relate to judgments, dating back as far as the related issues. Elyse joined the motion picture exhibition and the 1890s. To date, the Division has Division from the Federal Trade ASCAP and BMI decrees that to this day terminated decrees in 77 of 79 affected Commission, where she was an govern the licensing of music for public districts across the United States. Attorney Advisor to performance rights. See more about Courts terminated nearly 800 legacy Commissioner Noah Joshua this initiative on page 16. judgments in total, and no court has Phillips. Prior to that, Elyse denied the Division’s request to practiced at an international law firm and clerked on the U.S. Court of Appeals for the Fifth New Heights for the “New Madison” Approach Circuit for Judge E. Grady Jolly. Elyse earned her law degree Over the past three years, the Antitrust Standards-Essential Patents Subject to summa cum laude from Antonin Division has embarked on a multi- Voluntary F/RAND Commitments, which Scalia Law School at George pronged effort to help educate and replaced a previous statement on the Mason University—where she modernize the approach to antitrust same topic that was issued in 2013. frequently teaches antitrust and intellectual property law. Under That effort was the culmination of close classes—and her undergraduate this “New Madison” approach, the work between staff and leadership at degree summa cum laude from Division has cautioned against the those three agencies. So far, the Clemson University. misapplication of antitrust theories to statement has been very well received IP disputes where a patent-holder as an important step toward restoring William Sloan unilaterally attempts to exercise the balance to the debate over the Counsel to the AAG “exclusive Right” conferred by the U.S. availability of injunctions for William Sloan served on detail as Constitution. The Division has sought to infringement of SEPs. Counsel to the Assistant Attorney foster balance in the debate between The Division further expanded its General until the end of February so-called patent “hold up” and “hold advocacy in federal district courts, filing 2020, where his work focused on out.” At the same time, the Division has statements of interest advocating for criminal antitrust matters, brought greater attention to the risk of the sound application of antitrust law to including serving as the first anticompetitive coordination among intellectual property disputes. Earlier Director of the recently-formed members of standards development this year, in Continental v. Avanci, the Procurement Collusion Strike organizations. Division argued that alleged breaches of Force. From 2014 to 2018, he This past year, the “New Madison” FRAND obligations do not give rise to served as an Assistant U.S. approach reached new heights as it monopolization claims, and in Intel v. Attorney in the Eastern District expanded its advocacy on matters Fortress, the Division argued against an of Virginia, and from 2018 to the involving the application of antitrust assertion that antitrust law barred the present as an Assistant U.S. law to intellectual property disputes. defendant’s efforts to aggregate and to Attorney in the Eastern District monetize patent rights. Consistent with of Michigan. Prior to joining the Late last year, the Division joined the its words of warning against Department of Justice, he U.S. Patent & Trademark Office and the anticompetitive conduct in standards worked as an associate in the National Institute of Standards and development organizations, the Washington, D.C. office of an Technology in releasing an updated Division’s statement of interest in NSS international law firm and also Policy Statement on Remedies for 8
U.S. Department of Justice served as a law clerk to the Antitrust Division Update 2020 Honorable Richard J. Leon of the U.S. District Court for the District of Columbia. Before attending Labs v. Crowdstrike emphasized that licenses to take a particular form. law school, he served in the U.S. illegal group boycotts among standards Moreover, after careful consideration, Marine Corps as an infantry participants may be subject to the per the Division filed an amicus brief in late officer and deployed twice to se rule. 2019 in FTC v. Qualcomm, now pending Iraq. He is a graduate of in the Ninth Circuit, arguing that the Georgetown University Law The Division also was active in district court’s ruling improperly applied Center and Princeton University. significant cases pending in federal Section 2 of the Sherman Act to courts of appeals. In October 2019, the condemn unilateral licensing activity in Kristina Srica Division filed a joint amicus brief with a manner that threatens competition Counsel to the AAG the U.S. Patent and Trademark Office in and innovation Kristina Srica serves as Counsel HTC v. Ericsson, now pending in the Fifth Circuit, advocating against a rigid With the success of the “New Madison” to the Assistant Attorney understanding of what FRAND requires project, the Antitrust Division expects General, where her work focuses patent-holders to offer licensees. to continue its public advocacy in the on a range of criminal antitrust Specifically, the agencies argued the coming year. Our goal is to promote matters. She has served in a court should not adopt a rule that dynamic competition and incentives for number of other positions since would unnecessarily limit the use of innovation, consistent with the joining the Antitrust Division prior licensing evidence in FRAND ingenious framework for the patent through the Attorney General’s disputes, or that would require FRAND system that the Founders created. Honors Program in 2012, including as a trial attorney in both the New York Office and Assistant Attorney General Awards Washington Criminal I Section, and as a Special Assistant to the In January 2020, AAG Delrahim the Deputy Assistant Attorneys General Directors of Civil and Criminal recognized the outstanding and Senior Director for Investigations Enforcement. As a trial attorney, accomplishments of the Division’s staff and Litigation presented the awards. Kristina investigated and at the Division’s Assistant Attorney The ceremony gave the Division a prosecuted a variety of domestic General Awards ceremony. After chance to acknowledge fifteen and international cartel cases in opening remarks from AAG Delrahim, individuals and nine teams that went a broad span of industries, including financial markets and generic drugs. She also served as a Special Assistant United States Attorney with the U.S. Attorneys’ Offices for the District of Columbia and the Eastern District of Virginia, where she litigated a broad range of criminal cases. Kristina is a graduate of Hofstra University and Brooklyn Law School. Cecilia Cheng Rill Fellow of the Antitrust Division Cecilia Cheng is the inaugural Rill Makan Delrahim delivers remarks at the annual Assistant Attorney General Awards ceremony in January Fellow of the Antitrust Division 2020. The ceremony was held this year in the Great Hall of the Robert F. Kennedy Department of Justice and joined the Division in 2019 Building. Find the full list of honorees on our website. 9
U.S. Department of Justice through the Attorney General’s Antitrust Division Update 2020 Honors Program. She spends the first year of the fellowship in the Office of the Assistant Attorney above and beyond in their advocacy for intensely negotiated merger General, where her work focuses competition and for American settlements, precedent-setting civil on a range of antitrust matters consumers. These recipients worked on conduct litigation, groundbreaking related to the international successful criminal trials, matters where international negotiations, and top- program and to civil litigation. As merging parties forced the Division’s notch appellate work, among other a summer intern in the San teams to go to court, complex and things. Francisco Office of the Division, Cecilia also worked on criminal In Memoriam: Wayne Dunham antitrust matters involving bid One of the employees recognized in the AAG Awards ceremony this January was rigging. Prior to joining the economist Wayne Dunham. Wayne’s passing at the end of 2019 left a hole in the Division, Cecilia was a law clerk Antitrust Division and its Economic Analysis Group. In his quarter century with the for the Honorable Douglas H. Antitrust Division, Wayne’s influence in shaping modern antitrust could not be Ginsburg of the D.C. Circuit Court missed. He aided in the development of theories of competitive effects by of Appeals. She developed an supporting many of the Division’s testifying experts and making his own interest in antitrust law before presentations on tying and vertical foreclosure. The Division consistently relied on attending law school, when she Wayne for high profile matters and consent decrees—but one of Wayne’s most worked as a senior analyst at an enduring contributions came in one of his very first cases: the Antitrust Division’s economic consulting firm Section 2 case against Microsoft. This was the first specializing in expert testimony major case to revolve around both network effects and for antitrust litigation. Cecilia is a potential competition, topics impossible to escape in graduate of the University of today’s antitrust circles. California, Berkeley and Yale Law While the Division will certainly miss Wayne’s School. incredible substantive contributions to our work, we will miss his wry sense of humor and his passion even more. He was a generous colleague whose open door helped shape many of the next generation of Division The Sections of the Division economists. It was with much sadness that we learned Wayne Dunham of Wayne’s passing, and we are grateful for his decades The Antitrust Division could not Economist of public service. accomplish its mission of protecting competition without Attorney General Awards the dedication of its section The Division is excited to congratulate Holler, Jonathan Silberman, and Ryan members. These attorneys and the two teams of attorneys who were Tansey received the Attorney General’s economists represent the honored with the Attorney General’s Award for Distinguished Service for interests of the United States Award for Distinguished Service for their work on the Korea fuels parallel every day and serve as their work on important enforcement investigations. As a result of the caretakers of the antitrust laws. initiatives for the Antitrust Division. We Division’s investigation of a decade-long The Antitrust Division expresses also celebrated those honored with the bid-rigging conspiracy that targeted its thanks to all the employees John Marshall Award, the Department’s contracts to supply fuel to U.S. military who comprise the Division. It highest award for attorneys, for their bases in Korea, five oil companies also extends congratulations to work supporting the Antitrust Division’s agreed to plead guilty and seven those who have been promoted Judgment Termination Initiative. The individuals were indicted. In total, the to positions of leadership this Attorney General bestowed these companies have agreed to pay $156 year. Their names are marked awards at a ceremony last October. million in criminal fines and over $236 with an asterisk (*). million in separate civil settlements. Kevin B. Hart, Ken Sakurabayashi, Katie These settlements were the first Stella, Bobby Lepore, Dick Doidge, John 10
U.S. Department of Justice Appellate Section Antitrust Division Update 2020 Chief Daniel Haar*, Assistant Chief Robert B. Nicholson, Assistant Chief Stratton Strand Staff Attorneys: Adam Chandler, Andrew N. Delaney, Kathleen S. Kiernan, Patrick Kuhlmann, Bryan Leitch, Nickolai Levin, Matthew C. Mandelberg, Steven Mintz, Jeffrey Negrette, Robert Wiggers, Mary Helen Wimberly Chicago Office Chief Kalina M. Tulley, Assistant Chief Daniel W. Glad*, Assistant Chief Michael Loterstein Staff Attorneys: Chester Choi, Jonathan Clow, Kevin Culum, Elizabeth Homan, Robert Jacobs, Meagan Johnson, Ruben Martinez, Jr., Arefa Patel, Jane The Department of Justice honors attorneys from the Antitrust Division with the Attorney General’s Phillips, Jill Rogowski, Andrew Award for Distinguished Service for their investigation into the electrolytic capacitors industry. The team Rosa, Vivian Sapthavee, Eric uncovered a wide-ranging price-fixing conspiracy which yielded guilty pleas and criminal fines totaling Schleef, Carla Stern, Sandra over $150 million. Talbott, Jason Turner significant Section 4A settlements in Finally, Dorothy Fountain, Mark Niefer, many years and the largest on record. Hillary Snyder, Larry Reicher, Barry Competition Policy and Creech, Justin Dempsey, Mark Merva, Advocacy Section Katrina Rouse, Christopher Carlberg, Chief David Lawrence*, Cameron Gower, Ryan Karr, and Kara Mikal Condon, Thomas Greene, Paradi Assistant Chief Karina B. Lubell* Kuritz received the John Marshall Javandel, Jacklin Lem, Kelsey Linnett, Staff Attorneys: Mac Conforti, Award, the Department’s highest award Andrew Mast, Howard Parker, Jennifer Dixton, Eric Dunn, Erica for attorneys, for their work supporting Alexandra Shepard, Celestine Susi, Mintzer, Charles Ramsey, the Judgment Termination Initiative. Edward Bernard, Peter Woodward, Douglas Rathbun The team worked to terminate and Linda Van Stavern received the perpetual consent decrees dating back Attorney General’s Award for Defense, Industrials, and to the 1890s that have languished on Distinguished Service for their work on Aerospace Section the books and records of the electrolytic capacitors. Electrolytic Chief Katrina Rouse*, Assistant Department and court dockets. To date, capacitors are a ubiquitous component Chief Jay Owen*, Assistant Chief the effort has led to the termination of of consumer electronics, including Doha Mekki* hundreds of legacy judgments in over computers, televisions, and car engine Staff Attorneys: Erin Carter seventy district courts across the system. The team’s investigation into Grace, Jeremy Cline, Thomas country. For more on this initiative, see the industry’s wide-ranging price-fixing DeMatteo, James Foster, Kerrie page 7. conspiracy led to charges against eight Freeborn, John Greaney, Stephen companies and ten individuals. The The Division is proud of the recognition Harris, Christine Hill, Dan team successfully prosecuted all eight our staff received, and thanks the team Monahan, Catherine companies, securing guilty pleas and members who supported them. We are Montezuma, Gabriella criminal fines totaling over $150 million. privileged to work with each one of Moskowitz, Samer Musallam, these talented and dedicated Veronica Onyema, Fred individuals. Parmenter, Kevin Quin, Blake Rushforth, Lowell Stern, 11
U.S. Department of Justice Angela Yuen Yuk Ting, Rebecca Antitrust Division Update 2020 Valentine, Bashiri Wilson Economic Analysis Group Economic Litigation Section: The Sherman Award Chief Norm Familant, Assistant In October 2020, the Department of Chief Ari Gerstle* Justice will present the Honorable Economic Policy Section: Chief Douglas H. Ginsburg with the John Aditi Mehta*, Assistant Chief Sherman Award. The Award represents Evan Gee* the Department’s highest antitrust Economic Regulatory Section: honor, given in recognition of lifetime Chief Beth Armington, Assistant contributions to the development of Chief Nathan Goldstein* antitrust law and the preservation of Economic Advisor: Ron Drennan* economic liberty. Staff economists: Robin Allen, Danial Asmat, John Bender, Ross Of his many notable contributions to Brater, Jacob Burgdorf, Brian the field, Judge Ginsburg elevated the Three Assistant Attorneys General of the Clark, Haru Connolly, Patrick role of economic analysis in antitrust Antitrust Division. Pictured L-R: Makan Delrahim, Greenlee, Jenny Ho, Helen enforcement by expanding the James F. Rill, and the Hon. Douglas H. Ginsburg. Knudsen, June Lee, Jeff Lien, Division’s economics section and by markets. Judge Ginsburg’s antitrust Peggy Loudermilk, Matthew creating the position of the Deputy scholarship is widely admired, and his Magura, Sue Majewski, Levi Assistant Attorney General for academic works—ranging in topic from Marks, Dimitry Mezhvinsky, Economic Analysis during his tenure as the application of antitrust law in a Deborah Minehart, Diane Owen, the Assistant Attorney General of the changing economy to the effects of Craig Peters, Russ Pittman, Antitrust Division. His jurisprudence and extra-jurisdictional remedies—tackle Joseph Podwol, Yin Jia (Jeff) Qiu, scholarship further reflect the complex questions and continue to Alex Raskovich, Michael intellectual rigor that has marked his influence students, enforcers, and Sandfort, Jenny Shanefelter, distinguished career. He was an practitioners alike. Jessica Stahl, Yair Taylor, Tom influential judge on the landmark Whalen, Tor Winston, Zhongmin United States v. Microsoft case in 2001, The Department of Justice looks Wang, Peter Woodward, Fan and the case remains foundational to forward to presenting Judge Ginsburg Zhang understanding competition in high-tech with the award this fall. Staff Financial Analysts: Joanne Legomsky, John Griffin Spotlight on Women in Leadership Healthcare and Consumer The Antitrust Division is committed to supporting the many women who help Products Section advance the Division’s mission. Within the past year, the Division has welcomed Chief Eric Welsh*, Assistant several women to new roles, including in senior leadership positions. Chief Jill Maguire*, Assistant Rene Augustine Chief Andrew Robinson* Staff Attorneys: Jesus Alvarado- The Division named Rene Augustine as the new DAAG Rivera, Shobitha Bhat, Barry in charge of international and policy matters in July Creech, Justin Dempsey, Nate 2019, a position to which she was formally appointed Harris, Justin Heipp, Chris Hong, in January 2020. Augustine served most recently as Barry Joyce, David Kelly, Karl Senior Counsel in the Antitrust Division’s Front Office, Knutsen, Garrett Liskey, John overseeing both the Competition Policy and Advocacy Lohrer, Natalie Melada, Section and the Media, Entertainment, and Catherine Reilly, David Stoltzfus, Professional Services Section. Augustine has Rene Augustine Brandon Storm, Julie Tenney, previously served in all three branches of government Deputy Assistant Attorney Chris Wetzel and in the private sector. General 12
U.S. Department of Justice International Section Antitrust Division Update 2020 Chief Lynda Marshall, Assistant Chief Caldwell Harrop, Assistant Chief Michelle Rindone Favorite part of the new role: “I love my job, especially because the international Staff Attorneys: Aimee Imundo, and policy programs at the Division cover an incredibly broad range of issues and Melanie Krebs-Pilotti, Caroline give me an opportunity to engage with so many bright and interesting people.” Laise, Tim Longman, Sharon Best professional advice you’ve received: “I have been fortunate to receive lots of Mann, Leah McCoy great advice from mentors during the course of my career. Two pieces of advice Technical Assistant Coordinator: stand out: 1) When opportunity knocks, open the door; and 2) Seek a diversity of Devon Mahoney (Ret. FBI) experience in your career—it will enhance your judgment and make you more Media, Entertainment, and effective in whatever you are doing.” Professional Services Section Kathy O’Neill Chief Owen Kendler, Assistant Chief Lisa Scanlon, Assistant In July 2019, the Division also welcomed Kathy O’Neill as Chief Yvette Tarlov the Senior Director of Investigations and Litigation. Staff Attorneys: Meagan O’Neill has been with the Antitrust Division for 12 years, Bellshaw, Lee Berger, Brittney and most recently served as Chief of the Antitrust Dimond, Cory Brader Leuchten, Division’s Transportation, Energy, and Agriculture Mona Haar, Steven Kramer, Section. In her new role, she serves in the Front Office as Sarah Licht, Gregg Malawer, the senior-most career civil antitrust attorney, with Anthony Mariano, Bennett responsibility over all civil merger and conduct Matelson, Mark Merva, Lily investigations and litigation. Kathy O’Neill Okamuro, John Read, Kate Riggs, Senior Director of Lauren Riker, Ethan Stevenson, Favorite part of the new role: “In my time at the Investigations and Paul Torzilli, Jeffery Vernon, Division, I’ve had the good fortune to work on a wide Litigation Mimi Vishio, Rachel Zwolinski variety of matters and issues and to serve as the Chief of a terrific and very busy section. In my new role, I am really enjoying getting to bring New York Office that experience to bear across the full portfolio of civil case work. I’m also enjoying working with a broader set of folks. I love working with people who care deeply Chief Joseph Muoio, Assistant about the mission, who enjoy grappling with challenging legal issues and working up Chief Eyitayo (Tee) O. St. the cases. The Division is full of people like that and now I get to work with even Matthew Daniel*, Assistant more of them.” Chief Carrie Syme* Staff Attorneys: Philip D. Best professional advice you’ve received: “Two great pieces of advice: #1. Hard Andriole, Bryan Bughman, work pays off—this is a lesson instilled by my parents that has become central to my Katherine Calle, Mary Anne personal ethos. #2. It’s all about the people—if you enjoy the people you work with Carnival, Helen Christodoulou, and care about what you do for a living, it makes all the difference.” Milosz Gudzowski, Paola Henry, Eric Hoffmann, Kathryn Kushner, Women Making History Ann Lucas, Christopher Maietta, During Women’s History Month last year, the Division honored the role of women in Rebecca Meiklejohn, Stephanie antitrust leadership by formally dedicating the Anne K. Bingaman Auditorium & Raney, Bryan Serino, Steven Lecture Hall at the Department of Justice’s Liberty Square Building. Anne Bingaman Tugander was the first female Assistant Attorney General (AAG) for the Antitrust Division, Office of Civil Operations serving from 1993 to 1996 after being appointed by President Clinton. The dedication of the auditorium recognizes Bingaman’s many contributions to Chief Amy Fitzpatrick protecting competition on behalf of American consumers. During her tenure, the Counsel for Civil Operations: Division investigated Microsoft’s monopolization of PC operating systems and Soyoung (Jenny) Choe, Tracy charged 24 major NASDAQ securities firms with fixing transaction costs for Fisher investors. We are grateful for Bingaman’s reinvigoration of the Division’s 13
U.S. Department of Justice Office of the Chief Legal Advisor Antitrust Division Update 2020 Chief Dorothy Fountain, Deputy Chief Mark Niefer, Deputy Chief Sarah Oldfield enforcement efforts, as well as her inspiration to future generations of female Staff Attorneys: Nina Hale, antitrust attorneys. Kenneth Hendricks, Evan This year, the Division had planned to celebrate the one-year anniversary of the Perlman, Hillary Snyder dedication of the Anne K. Bingaman Auditorium & Lecture Hall by hosting a San Francisco Office Women’s History Month celebration at the Hall in March 2020. Although we were Chief Manish Kumar, Assistant unable to host the event due to the COVID-19 pandemic, it would have been a Chief Jacklin Lem, Assistant wonderful chance to celebrate the promotion of our many women leaders into Chief Leslie Wulff* management roles this year. We are proud to announce the following promotions Senior Litigation Counsel for or additions since April 2019: Criminal Enforcement: Mikal Office of the AAG: Elyse Dorsey (Counsel to the AAG), Kristina Srica (Counsel to the Condon AAG), Cecilia Cheng (Rill Fellow); Office of Civil Operations: Amy R. Fitzpatrick Staff Attorneys: Zachary (Chief); Competition Policy and Advocacy: Karina B. Lubell (Assistant Chief); Defense, Abrahamson, Christopher Industrials, and Aerospace: Katrina Rouse (Chief); Economic Policy: Aditi Mehta Carlberg, Pam Cole, Jeremy (Chief); Healthcare and Consumer Products: Jill Maguire (Assistant Chief); New York Goldstein, Thomas Greene, Office: Eyitayo (Tee) O. St. Matthew Daniel (Assistant Chief), Carrie Syme (Assistant Jennifer Hane, Philander Huynh, Chief); San Francisco Office: Leslie Wulff (Assistant Chief), Mikal Condon (Senior Paradi Javandel, Elizabeth Litigation Counsel for Criminal Enforcement); Transportation, Energy, and Jensen, Andrew Mast, Nolan Agriculture: Katherine Celeste (Assistant Chief), Patricia Corcoran (Assistant Chief). Mayther, Arshia Najafi, Howard Parker, Michael Rabkin, Ken Spotlight: Women Leaders in Sabre Sakurabayashi, Albert Sambat, Andrew Schupanitz, Alexandra In August 2019, the Antitrust Division the transaction in April 2020 and the Shepard, Anne Veldhuis sued to block Sabre’s $360 million parties abandoned the transaction in acquisition of Farelogix, alleging the May 2020. The Division has since Technology and Financial acquisition would eliminate a disruptive moved to vacate the district court’s Services Section competitor from the market for airline decision granting judgment to booking services, which allow airlines to defendants. Chief Aaron Hoag, Assistant process orders from travel agencies. Chief Danielle Hauck, Assistant Throughout the eight-day trial, the Chief Adam Severt The Division argued the acquisition Division benefited from the excellent Staff Attorneys: Paul Andrew would eliminate competition from lawyering of the trial team, including Allulis, Brendan Ballou-Kelley, Farelogix, an innovative firm whose several women who held key roles. This Sarah Bartels, Bindi Bhagat, unique approach challenged Sabre’s paralleled the contributions of women Michael Eric Blaisdell, Samuel longstanding position as the leading leaders during the investigation. Blesi, Janet Brody, Kent Brown, provider of booking services in the United States. Despite its small market Jessica Butler-Arkow, Sean Kevin Julie Elmer (Attorney, TFS), the share, Farelogix presents an important Carman, Travis Chapman, Nick litigation lead, delivered the Division’s alternative for airlines, allowing them to Cheolas, Alex Cohen, Aaron opening statement, speaking for nearly negotiate better terms. For consumers Comenetz, Vittorio Cottafavi, thirty minutes to a courtroom packed who travel, Farelogix’s next-generation Erin Craig, Milly Dick, Christopher with members of the antitrust bar and booking services enhance choice and Dodge, Julie Elmer, Gary Daniel members of the press. No stranger to otherwise improve the travel Feldon, David A. Geiger, Richard the role, Sabre marks Elmer’s second experience. Although the District Court Cameron Gower, Leah Graham, effort leading a trial team at the of Delaware ultimately denied the Daniel Guarnera, Adrienne Hahn, Division, following the 2017 trial in Division’s request for injunctive relief, Karl Herrmann, Ian Hoffman, United States v. Energy Solutions, where the U.K. Competition and Markets John Hogan, Ryan Karr, Ihan Kim, she led the successful challenge to the Authority issued a statement blocking John Lindermuth, Alisa Mastro, 14
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