Part Two: Non-Merger Enforcement

Wednesday, January 1st, 2003 at 12:00 am by Mark Fiore, Elinor Hoffmann, Stephen D. Houck, Arman Y. Oruc, Fiona A. Schaeffer, Dorothy Watson, K. Brooke Welch
Mark Fiore, Elinor Hoffmann, Stephen D. Houck, Arman Y. Oruc, Fiona A. Schaeffer, Dorothy Watson, K. Brooke Welch, Part Two: Non-Merger Enforcement, 2003 Colum. Bus. L. Rev. 495

During 2002, both the Department of Justice Antitrust Division (“Antitrust Division”) and the Federal Trade Commission (“ftc”) continued the shift of resources begun in 2001 from merger to non-merger enforcement. In large part, the change in enforcement priorities is a function of the recent dramatic decline in the number of mergers. It is also a function of the enactment of the Hart-Scott-Rodino Antitrust Improvements Act of 2000, which has resulted in a significant decrease in pre-merger filings because of the higher dollar threshold for reportable transactions.

The growing emphasis on non-merger enforcement is readily discernible in workload statistics for the two agencies for fiscal year 2001, the most recent year for which complete figures are available. The ftc, for example, commenced more than double the number of non-merger antitrust investigations during 2001 than it had the previous year. The pattern at the Antitrust Division was similar. The shift in enforcement priorities was also palpable in the January 2002 reorganization of the Antitrust Division, which created a new National Criminal Enforcement Section, disbanded the old Merger Task Force, and organized civil enforcement resources along industry lines (including new Telecommunications & Media and Network & Technology Sections) instead of by merger or non-merger work.

This section discusses two areas of current enforcement emphasis, one by the Antitrust Division and the other by the ftc. The first is criminal antitrust enforcement, highlighted by Acting Assistant Attorney General Pate in his Milton Handler Antitrust Review remarks. The second is health care antitrust enforcement, a focus of recent ftc efforts noted by Chairman Muris in his Milton Handler Antitrust Review remarks. This section concludes with a brief discussion of issues arising from the overlapping enforcement jurisdictions of federal and state antitrust agencies in our federal system.

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