DOJ Antitrust Restructuring Closely Mirrors FTC Enforcement Organization
DOJ's restructuring its Antitrust Division Civil Enforcement Program is a good move that will closely mirror the FTC’s organization, antitrust attorneys said in interviews. DOJ said the realignment will allow more “vigilant enforcement” and “deeper expertise in technology trends.” The department is creating an Office of Decree Enforcement and Compliance and a Civil Conduct Task Force. The restructuring includes redistributing “matters among its six civil sections in order to build expertise based on current trends in the economy,” it said.
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Antitrust attorney and former DOJ and FTC official David Balto called it an “important change,” in which the department is reverting to a previous model. DOJ used this format in the 1960s and it's currently used at the FTC, which has separate civil enforcement and compliance divisions, Balto said. Additional consent decree expertise will be “really helpful” on stronger tech enforcement, he said. DOJ was initially restructured because there weren’t enough compliance enforcement actions to keep the compliance staff busy, he added: “Since the Clinton administration, there really hasn’t been strong compliance enforcement, so hopefully this is something that will turn that around.”
The realignment will closely mirror the FTC’s Competition Bureau, which includes divisions for Compliance, Anticompetitive Practices and Technology Enforcement, emailed Hunton Andrews’ Kevin Hahm, a former FTC antitrust attorney. He noted the importance of starting a division focused on technology at the FTC, saying it makes sense to have DOJ sections specialize in these areas. “While the creation of these separate sections may silo off attorneys based on their specialized areas of practice, [the Competition Bureau] always allowed for lawyers to do details across divisions so knowledge and experience could be readily shared across divisions,” he added.
“The new Civil Conduct Task Force should mean additional, specialized resources dedicated to analyzing civil non-merger investigations, which can sometimes be challenging for the agency to advance or resolve expeditiously given the need to prioritize merger investigations in light of their statutory deadlines," emailed Axinn's Leslie Overton, a former DOJ antitrust official.
Dedicating a single section to financial services and combining media and telecom work will allow the DOJ tech section to focus entirely on the “growing digital economy and the unique characteristics of certain current and emerging platform-based business models,” Delrahim said in a speech Thursday. Tech companies are “among the most valuable and powerful in our economy,” and DOJ needs to adapt to a rapidly evolving digital economy, he said.
The Office of Decree Enforcement and Compliance will enforce judgments and consent decrees in civil matters and advise the Antitrust Division’s criminal sections when “parties seek credit at the charging stage for their corporate compliance programs,” DOJ said. The new office “will ensure the American consumer fully benefits from the Antitrust Division’s hard work identifying anticompetitive mergers and conduct,” Antitrust Division Chief Makan Delrahim said. “We are building on our recent successes in Live Nation and CenturyLink. Those matters show how important it is to enforce our consent decrees vigilantly.” Lawrence Reicher, former counsel to the assistant attorney general, will lead the new office.
The restructuring is a result of Delrahim’s 2018 announcement that the division will ensure that “effective enforcement, rather than regulation, is the touchstone of settlement decrees and related agreements,” DOJ said.
The Civil Conduct Task Force “will energize and prioritize non-merger civil enforcement,” Delrahim said. It will work across civil sections and field offices “to identify conduct investigations that require additional focus and resources.”
Realigning civil section responsibilities is the result of tech reshaping “the competitive dynamics in several industries that the Antitrust Division analyzes on a regular basis,” DOJ said. The restructuring “recognizes how technology trends have changed the way Americans consume financial services as well as media and communications services,” Delrahim said.
The Media, Entertainment, and Professional Services Section will now focus on financial services, fintech and banking. The Telecommunications and Broadband Section will expand its focus to include media, entertainment and telecom industries. The Technology and Financial Services section will focus entirely on tech markets and the “competitive characteristics of platform business models,” DOJ said.