DOJ Shifts Policy on Antitrust Enforcement

The Justice Department’s new antitrust chief today promised to vigorously investigate corporations that unfairly dominate markets, telling a group of lawyers and journalists that enforcement in the past decade was too relaxed.

“It is time for antitrust to step up its efforts,” said Assistant Attorney General Christine Varney in her first public remarks since taking over a month ago.

That effort will begin with the withdrawal of a Bush-era report providing legal guidance related to monopolies, Varney said. The 2008 report raised too many hurdles to antitrust enforcement and created safe harbors for conduct covered under Section 2 of the Sherman Act, Varney said. She announced the new policy in a speech at Center for American Progress, a left-leaning policy and advocacy group.

In particular, Varney said she disagreed with the report’s skepticism of the ability of antitrust enforcers and the courts to differentiate anticompetitive effects and lawful conduct, as well as its concerns about over-deterrence.

“I do not share these concerns,” Varney said. “I strongly believe that antitrust enforcers are able to separate the wheat from the chaff in identifying exclusionary and predatory acts.”

Varney said the Justice Department was not proposing a single test to govern Section 2 matters. She pointed to three cases -- Lorain Journal v. United States, Aspen Skiing Co. v. Aspen Highlands Skiing Corp, and United States v. Microsoft -- that the division will rely on for guidance on the reaches of the Sherman Act.

Varney said robust criminal enforcement, a hallmark the Bush administration, would continue on its current path. Varney also announced that the division had launched an initiative to train agencies receiving Recovery Act funds to ferret out criminal antirust offenses. By the end of May, Varney said the division lawyers will have provided training for more than 8,000 auditors grant recipients, and other procurement officials.

In the civil arena, she expressed an interest in exploring vertical theories and other new areas arising in the high-tech and internet-based markets. (She’s an expert in these fields. As a partner at Hogan & Hartson, she headed the firm's Internet practice group. For more on Varney, click here for our February profile.)

Comments

[James Susanka]

"Is this a veiled threat at Google?"

One other note. Google is not stopping any one from starting their own search engine company. It is a level playing field.

you can't say that with someone wanting to start an OS company. you cannot get an os on computers without microsoft either punishing the distributor with higher prices or threatening lawsuits that have no merit.

[James Susanka]

"Is this a veiled threat at Google?"

Uh no - last time I looked I could run google's apps on any computer and os of my choice.

you just can't say the same about microsoft software. it is about time some one got tough on microsoft. there is no other industry that lets any company get away with what microsoft does or has done

[David]

Is this a veiled threat at Google?