Spring has come again, and with it, flocks of antitrust lawyers and economists have returned to Washington, DC for the ABA’s annual Antirust Law Spring Meeting. I have once again prepared the Bureau of Competition’s report on its activities and accomplishments over the past year. More than just a catalogue of work, this year’s Spring Report provides a means to view the Commission’s competition activities as a whole to see the breadth of what we’ve done – actions challenging single-firm behavior, anticompetitive agreements, invitations to collude and anticompetitive mergers.
One of the most striking features of the Commission’s competition workload this past year is the number of antitrust cases we have had pending in federal courts at all levels—at trial, and pending on appeal, including before the Supreme Court. In just a few weeks, the Commission will present evidence in federal court here in D.C. on its motion for a preliminary injunction in Sysco/US Foods. And on June 1, more than seven years after we filed our complaint against Cephalon for anticompetitive reverse payment patent settlements, trial will begin in district court in Philadelphia. Add to that the Commission’s significant appellate victories in the past year: the Sixth Circuit opinion in ProMedica Health Systems, the Ninth Circuit opinion in St. Lukes/Saltzer Medical Group, this week’s Eleventh Circuit opinion in McWane, Inc., and, of course, the Supreme Court’s decision in FTC v. North Carolina State Board of Dental Examiners. Each of these decisions advances antitrust doctrine in ways sure to influence the direction of antitrust enforcement, from merger analysis to monopolization standards and the proper scope of the state action doctrine.
But viewing the Commission’s work solely through its litigation victories would minimize the importance of our negotiated settlements, the bread-and-butter work of an antitrust enforcement agency. As I have said before, negotiated settlements can be just as effective in maintaining or restoring competition as going to court. A well-crafted consent order can achieve divestitures necessary to preserve existing levels of competition, stop anticompetitive conduct, cause firms to take additional steps to restore competition, or clear away impediments to future competition.
We examine conduct and transactions through a fact-intensive analysis to determine whether the matter before us is likely to harm competition. Whether through a negotiated settlement, or a litigated result, our aim is to protect consumers through promoting competition.
We cannot – and will not -- rest on our laurels, but it’s been a good year.