The need for antitrust enforcement rules to become clearer dominated a panel discussion in Washington this afternoon sponsored by The Federalist Society.
The organization noted in a press release that there was a 50 percent increase in Justice Department antitrust filings from 2010-2011, listing a number of technology companies like Google and Facebook as targets.
Washington-based Cadwalader, Wickersham & Taft partner Charles "Rick" Rule said during the discussion at the National Press Club that the current laws "have to be applied even-handedly."
This was met with skepticism from Robert Cass of Cass & Associates, who argued that the government selects cases based on laws that do not set guidelines specific enough to provide concrete direction. The United States has laws on the books that that are "highly ambiguous," he said.
To illustrate this point, Husch Blackwell senior advisor Jim Miller related an anecdote about a pharmacist who swapped the stickers on his bottle of prescription mouthwash from a version with overly wordy directions to one that simply said "swish in mouth and spit."
With more directions like that simpler one in antitrust legislation, Miller said regulatory agencies would be able to better discern when to take action.
The ambiguous nature of the standards, Rule argued, stems from their basis in theoretical reasoning instead of solid factual analysis and leads to the possibility of selective enforcement by attorneys or government administrators.
Alone in his dissent, Drinker Biddle & Reath partner Robert Skitol said the Obama administration has not drastically altered the way in which antitrust regulations are applied.
Skitol defended the Justice Department against the assertion that administrators have been enacting regulation by consent decree. "While that might be an accurate description for them, it does not mean that DOJ overreached," he said.
In contrast, Miller suggested that congressional leaders who have supported stalled legislative efforts to regulate the internet like the Stop Online Piracy Act "may be accomplishing their objectives" through regulatory investigations and penalties.