ANTITRUST DIVISION WILL TAKE A MORE AGGRESSIVE APPROACH TO EXCLUSIONARY CONDUCT

On May 11, 2009, Christine A. Varney, Assistant Attorney General in charge of the Department’s Antitrust Division, delivered her first speech at an event sponsored by the Center for American Progress. The speech, entitled “Vigorous Antitrust Enforcement in this Challenging Era,” confirms that the new administration intends be much more active role than the Bush administration in terms of antitrust enforcement. Her speech primarily focused on the Department’s approach to enforcing Section 2 of the Sherman Act, which prohibits monopolization or attempts to monopolize.
Varney explicitly withdrew the Department’s report on Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act (the “Section 2 Report”), which the Department issued in September 2008. The Section 2 Report spelled out the agency’s enforcement intentions regarding single-firm conduct and provided significant new policy guidance concerning specific business practices that have been subject to government challenges in the past.

Under the Bush administration, it was very difficult to challenge any conduct under Section 2. Varney announced that the Justice Department was withdrawing the Section 2 Report and that the Report “no longer represents the policy of the Department of Justice with regard to antitrust enforcement under Section 2 of the Sherman Act. The Report and its conclusions should not be used as guidance by the courts, antitrust practitioners, and the business community.”

In addition to withdrawing the Section 2 Report, Varney reinforced that the new administration intends to pursue a much more aggressive antitrust enforcement agenda than did the Bush administration. In addition, she said that antitrust enforcement should not be relaxed regardless of the current economic conditions.

Varney briefly touched on other areas in which the Justice Department will seek to take an aggressive approach. She praised the Antitrust Division’s success in cracking large domestic and international cartels in recent years and promised to continue on with aggressive approach. In the areas of civil merger and non-merger investigations, Varney said the Antitrust Division will be particularly interested in opportunities to explore vertical theories and other new areas of civil enforcement, such as those arising in high-tech and internet markets.

Varney’s speech is consistent with her testimony at her Senate confirmation hearings, where she made clear that businesses can expect more aggressive antitrust enforcement. The withdrawal of the Report and Varney’s comments suggest that the Antitrust Division will likely move much closer to the FTC’s enforcement approach.

Andre Barlow
(202) 589-1834
abarlow@dbmlawgroup.com