The Obama administration will be making antitrust law enforcement far more aggressive than it has been since the Lyndon Johnson administration. Antitrust has for the last 15 years been a backwater of little concern to all save the mega companies, whose operations and growth have the capacity to impact competition policy across substantial breadth of geographic and relevant product/service markets.
The incentive for aggressive enforcement for the near term is the obvious policy interest to limit financial inefficiencies in public spending through the use of price competition inhibiting practices. Not only is price fixing likely to make public projects more expensive, but there is the added incentive to instill higher levels of awareness of antitrust enforcement risk throughout the entire scope of economic activity.
If the Department of Justice’s Antitrust Division and the Federal Trade Commission are going to crank up an antitrust enforcement program, one may reasonably expect it to be broader than just price fixing cases. While other areas of antitrust law have been made less risky by reason of the courts recognizing that markets are much more dynamic on account of globalization, one may not take it for granted that there is some kind of implied license to engage in restrictive practices other than price fixing. Illustratively, everyone pretty much thought tying arrangements were not risky since the Jefferson Parish case. Then came Eastman Kodak with its capture theory. To be sure, one may expect different results where the potential target defendant is not a corporate giant. The intensity of the implementation of the challenged practices will also play a role in results prediction, as well as the involvement of public spending in the relevant market.
Dispute settlement likelihood will vary according to the interests of public customers spending government appropriations. One may expect that state attorneys general will have observed the positive publicity associated with state enforcement activity competing with the justice department for a leading role in enforcement. The New York attorney general demonstrated what state resources can accomplish in the face of federal enforcement lassitude. Between the publicity – which always affects appropriations for future budgets – and the inherent financial productivity resulting from civil enforcement actions and large settlements, state resources should be regarded as serious threat potential, especially where less than national markets are the stages on which the challenged conduct occurs.
Ultimately, the availability of treble damages plus attorney fees, especially following on government enforcement action, provides an army of private litigating resources that can extract very substantial recoveries in any antitrust action.
Our 45 years experience in dealing with antitrust issues represents a significant head start in value for any client with sensitivity to 21st century antitrust policy in the United States.