An Interview with Makan Delrahim, Former Assistant Attorney General for the Department of Justice Antitrust Division

Makan Delrahim and Svetlana Gans

Svetlana S. Gans, a member of the Federalist Society’s Corporations, Securities, & Antitrust Practice Group Executive Committee, interviewed Makan Delrahim, former Assistant Attorney General for the Department of Justice Antitrust Division. Makan Delrahim was confirmed as AAG for the Antitrust Division on September 27, 2017, and he served until January 19, 2021. Under Mr. Delrahim’s leadership, the Antitrust Division updated the Vertical Merger Guidelines (which were last revised 36 years ago), instituted procedural reforms to streamline and make more transparent merger and acquisition reviews, established the Division’s policy to evaluate and credit corporate compliance programs in criminal charging decisions, and created the Procurement Collusion Strike Force to combat procurement fraud.  The Division also launched a review of 1,200 Division consent decrees, leading to the termination of 850 outdated decrees. The interview has been lightly edited for clarity, and footnotes have been added for readers’ reference.

Gans: You led the DOJ’s Antitrust Division from September 2017 to January 2021. What were your greatest accomplishments and challenges during your time in that role?

Delrahim: I’m proud of the Antitrust Division’s international engagement during my tenure. In our globalized world, mergers and conduct are scrutinized by competition agencies in multiple jurisdictions. If corporations are to navigate the requirements of the more than 140 competition agencies around the world, the agencies need to converge on substantive and procedural approaches.

The Division took a significant step toward reaching these goals through the International Competition Network’s Framework for Competition Agency Procedures—known as “CAP.”1ICN Framework on Competition Agency Procedures, International Competition Network, available at https://www.internationalcompetitionnetwork.org/wp-content/uploads/2019/04/ICN_CAP.pdf. I first announced this initiative in June 2018. The Antitrust Division, in consultation with a dozen leading competition agencies from around the world, developed the proposal, which was then introduced to the global antitrust community. Seventy competition agencies ultimately signed on to this initiative. It became the first ever multilateral agreement in competition enforcement. The agreement recognizes fundamental principles of transparency and procedural fairness in antitrust enforcement and promotes review mechanisms to ensure that participating agencies abide by these norms.

The Division has also had a great deal of success improving the law at the intersection of antitrust and intellectual property. By filing statements of interest and amicus briefs, we’ve helped United States courts properly balance bargaining leverage between patent holders and implementers—especially around the issue of fair, reasonable, and non-discriminatory (FRAND) commitments—so as to retain incentives to innovate and spur technological development. And we’ve had important international successes around this issue as well. This past spring and summer, both the UK Supreme Court and the German high court issued important decisions that align with the principles the Division has advocated over the past few years.

 

Gans: Can you elaborate on where you think we are in those two areas that have been of special interest to you, IP and international enforcement and process? What has been achieved, and what you would like to see going forward? Earlier this year, for example, the Division updated a business review letter in the area of injunctions and standard essential patents.

Delrahim: Over the last several years, the Division has accomplished a tremendous amount in the areas of intellectual property and international enforcement. On the IP side, our focus on the New Madison approach helped to establish an enforcement regime that balances the rights of various stakeholders.2See Makan Delrahim, The “New Madison” Approach to Antitrust and Intellectual Property Law, Remarks as Prepared for Delivery at University of Pennsylvania Law School (Mar. 16, 2018), available at https://www.justice.gov/opa/speech/file/1044316/download. By affording due weight to the interests of both patent holders and patent implementers, this approach facilitates a competitive environment in both the short term and the long term, spurring continued innovation and experimentation to benefit consumers.

This approach sets our antitrust enforcement efforts back on the right path. Prior work by some scholars and enforcers had focused myopically on the implementer side of this equation. For instance, in the standards development setting, concerns arose that standard essential patent (SEP) holders might violate their obligations to license their technologies on FRAND terms. Commentators argued that this ex post “hold-up” problem might be more than a mere contract or patent problem—it might be an antitrust one as well. Cases began to emerge in which plaintiffs attempted to convert contract or patent harms into antitrust ones. We also saw increased advocacy for limiting the ability of SEP holders to seek injunctive relief.

In other words, this approach resulted in policy—and even some enforcement—positions that favored implementers over patent holders. It largely ignored the perverse incentives that might arise from reducing a patent holder’s fundamental rights. For example, this approach exacerbated the incentives for implementers to “hold out,” or to refuse to accept even FRAND licensing terms ex post, knowing the likelihood of being enjoined was significantly reduced. Over time, these incentives would likely undermine standards development organization (SDO) processes, as patent holders would be increasingly discouraged from participating in a process that did not treat them fairly.

The Division’s New Madison approach recalibrated the analysis to put implementers and patent holders on equal footing. We put this balanced approach into practice in several ways. Last year, we issued a joint statement with the U.S. Patent and Trademark Office and the National Institute of Standards and Technology on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments.3Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments, Joint Statement of the USPTO, NIST, and DOJ Antitrust Division (Dec. 19, 2019), available at https://www.justice.gov/atr/page/file/1228016/download. This statement clearly states that the existence of a FRAND obligation is “a relevant factor in determining appropriate remedies, but need not act as a bar to any particular remedy.”

As your question notes, we also reiterated in our letter to the Institute of Electrical and Electronics Engineers that the antitrust laws should not usurp or undermine patent holders’ rights.4Letter from Makan Delrahim, Assistant Attorney General, DOJ Antitrust Division, to Sophia A. Muirhead, General Counsel and Chief Compliance Officer, IEEE (Sept. 10, 2020), available at https://www.justice.gov/atr/page/file/1315291/download. The 2015 iteration of this business review letter focused on the implementer side of the equation.5Letter from Renata B. Hesse, Acting Assistant Attorney General, DOJ Antitrust Division, to Michael A. Lindsay, Dorsey & Whitney LLP (on behalf of IEEE) (Feb. 2, 2015), available at https://www.justice.gov/atr/response-institute-electrical-and-electronics-engineers-incorporated. Our 2020 update emphasizes the importance of considering the other side, in order to create a balanced enforcement regime. We had heard that the 2015 Letter was being used in ways that not only undermined patent holders’ rights, but also discouraged patent holder participation in SDO processes, thereby reducing the consumer value of those standards. SDOs work best when there is robust, competitive participation. Chilling participation can significantly diminish consumer benefits.

Our approach has seen other notable successes, both at home and abroad. For instance, the Ninth Circuit recently expressed skepticism about expanding the antitrust laws to “remedy what are essentially contractual disputes between private parties engaged in the pursuit of technological innovation.”6FTC v. Qualcomm Inc., 969 F.3d 974, 997 (9th Cir. 2020). Similarly, Chief Judge Barbara Lynn of the Northern District of Texas recently issued a decision in Continental Automotive Systems v. Avanci that reflects these basic principles, dismissing a complaint that attempted to plead antitrust claims based solely on alleged breaches of FRAND commitments.72020 WL 5627224 (N.D. Tex. Sept. 10, 2020).

I’m further pleased by recent international demonstrations of support for these critical principles. As I mentioned in response to your first question, both the UK Supreme Court and the German Federal Court of Justice recently recognized that implementers have incentives to behave badly in negotiations unless patent holders have strong remedies available to them. In Sisvel v. Haier this past spring, the German high court required implementers to do their part in negotiations and to accept any offer made on FRAND terms.8Sandra Muller, Case Closed? German Federal Court of Justice Issues Groundbreaking Judgment on FRAND Rules in Sisvel v. Haier, Nat’l L. Rev. (Sept. 4, 2020), https://www.natlawreview.com/article/case-closed-german-federal-court-justice-issues-groundbreaking-judgment-frand-rules. In Unwired Planet International v. Huawei Technologies, the UK Supreme Court likewise emphasized the importance of preserving SEP holders’ access to injunctive relief in order to prevent incentives for implementers to behave badly.9Unwired Planet International v. Huawei Technologies, UKSC 2018/0214, available at https://www.supremecourt.uk/cases/uksc-2018-0214.html.

These decisions indicate that there is an emerging international consensus that SEP holders and implementers need to be placed on equal footing. Going forward, I’d be pleased to see this consensus broaden. Innovators and entrepreneurs need predictability, and consistent international law fosters predictability.

This leads me to our international work. Antitrust enforcement today is truly a global effort, and coordination and communication across jurisdictions is more important than ever before. Earlier this year, we co-hosted, along with the Federal Trade Commission (FTC), the International Competition Network’s (ICN) annual conference. This was originally scheduled to be the first ICN conference to take place on American soil. While we were forced to pivot to a virtual setting due to the COVID-19 pandemic, we were nonetheless able to host a successful event bringing together hundreds of enforcers and experts from around the globe. On Day 1, we were joined by over 2,500 viewers. Events like this create invaluable opportunities for enforcers to meet and engage in candid discussions regarding enforcement efforts, challenges, and best practices.

Indeed, the 2019 Framework on CAP came into being through a combination of informal and formal discussions between agencies facilitated by similar events. The DOJ helped to spearhead the CAP effort, which began by working with leading competition agencies around the globe to create a proposal for a Multilateral Framework on Procedures (MFP). Like the CAP, the goal of the MFP was to identify those fundamental procedural norms that were truly universal, and to encourage competition agencies across the globe to commit to these norms. Norms we identified included non-discrimination; transparency and predictability; notice of investigation and meaningful and timely engagement; confidentiality protections; and availability of independent review of enforcement decisions. After we released the MFP, there was widespread support and strong interest in executing such a document through the ICN, which offered various institutional and administrative benefits. Over 70 competition agencies have signed on to date, and all are committed to developing an international antitrust enforcement environment that respects fundamental due process. The CAP signatories met for their first discussion this October, and we look forward to valuable ongoing discussions.

We have also amplified our efforts to engage directly, or bilaterally, with our colleagues across the globe. We regularly cooperate in investigations and matters that span jurisdictions. For instance, in fiscal year 2020, we cooperated with at least 15 international counterparts on 26 merger and civil nonmerger matters, and with at least 18 jurisdictions on cross-border investigations and global cartel enforcement actions. Additionally, the Division has increased its advocacy for sound principles globally through our international amicus program. We have worked with several sister competition agencies to provide advocacy in their domestic courts in appropriate cases and circumstances.

Our efforts on the IP and international fronts have helped to modernize antitrust efforts, meeting the new challenges of enforcing the competition laws in a dynamic and global environment.

 

Gans: You announced the Judgment Termination Initiative shortly after you took the helm at the Division. The Initiative identifies legacy consent decrees that are no longer serving their original purpose of protecting competition. How has this Initiative fared, and what factors does the Division employ to assess whether a legacy decree continues to protect competition? When should legacy decrees be retained?

Delrahim: Reviewing and eliminating legacy judgments is an important initiative of mine. Prior to 1979, Antitrust Division decrees were perpetual. Since then, however, the default is that decree terms are no more than 10 years. Our experience demonstrated that perpetual antitrust injunctions rarely serve to protect competition. Markets almost always evolve over time in response to competitive and technological changes; and these changes may render the terms of perpetual judgments irrelevant to—or even inconsistent with—competition in the market. This policy change thus enhanced our efforts to protect consumers.

The change in the Division’s policy also fixed an incongruity. If you violated the antitrust laws in 1987, you have not been subject to an antitrust consent decree for more than two decades. Yet, if you violated the antitrust laws in 1917, you have been subject to a decree for a century, with no end in sight. That makes no sense. Those decrees, which are court orders, cannot be terminated or modified except by further court order.

As part of the Division’s effort to review and eliminate legacy decrees that no longer are necessary to remedy the violation they addressed, well over 1,000 decrees have been reviewed for possible termination. The Division has sought to terminate decrees that are no longer necessary to protect competition or that may even be anticompetitive. A variety of factors can weigh in favor of termination. In many cases, the judgment’s age alone suggests that it no longer protects competition. Additional factors weighing in favor of termination may include that all substantive terms of the judgment have been satisfied, or that the judgment may largely prohibit acts the antitrust laws already prohibit, such as price fixing, or that the defendants no longer exist or are deceased.

To date, the Division has terminated decrees in all affected districts across the United States. Courts have terminated about 800 legacy judgments in total, and no court has denied the Division’s request to terminate a decree. Terminated decrees under the initiative have ranged from those in obsolete industries (like music rolls) to those resulting from seminal antitrust cases (like Addyston PipeStandard Oil, and Brown Shoe).

The most significant consent decree termination was ending the Paramount decrees in August 2020. These decrees date back to 1938. After several years of litigation, including the  Supreme Court’s decision in United States v. Paramount,10334 U.S. 131 (1948). the Antitrust Division and the defendants entered into a series of consent decrees. These decrees required the movie studios to separate their distribution operations from their exhibition businesses. They also banned various motion picture distribution practices, including block booking (bundling multiple films into one theatre license), circuit dealing (entering into one license that covered all theatres in a theatre circuit), resale price maintenance (setting minimum prices on movie tickets), and granting overbroad clearances (exclusive film licenses for specific geographic areas). Gone with the Wind, The Wizard of Oz, and It’s a Wonderful Life were the blockbusters when these decrees were litigated; the movie industry and the ways Americans enjoy their movies have changed by leaps and bounds in these intervening years. Without these restraints on the market, American ingenuity is again free to experiment with different business models that can benefit consumers.

While the vast majority of legacy decrees raise no serious issues associated with their termination, I recognize that a certain limited number of decrees may raise complications—for example, if an industry developed substantially in conjunction with the decree, creating a long-standing reliance by industry participants on the decree, or when there remain competitive problems in the industry.

 

Gans: You recently reorganized the Antitrust Division to add units to focus on consent decree compliance and civil conduct investigations. Why did you make those changes, and what do you hope they will achieve?

Delrahim: Last summer, the Antitrust Division established the Office of Decree Enforcement and Compliance (ODEC), which will have primary responsibility for enforcing judgments and consent decrees in civil matters. It will also advise the Antitrust Division’s criminal sections when parties seek credit at the charging stage for their corporate compliance programs. Further, ODEC will be the Antitrust Division’s primary contact for whistleblowers or complainants who have information regarding potential violations of settlements with the Antitrust Division.

Although the Division favors remedies that do not require significant subsequent oversight, continued policing may be necessary to enforce some judicial decrees. For instance, the last significant technology monopolization case brought by the United States—U.S. v. Microsoft—resulted in a decree that required years of oversight enforcement. A small but expert centralized team dedicated to such compliance efforts—working in conjunction with the sections that prosecuted the underlying cases—is the best way to proactively ensure that enforcement starts from the first day of any such decree. In addition to monitoring, ODEC will also have the composition and expertise to enforce compliance through litigation.

The necessity for this new office is exemplified by the Division’s recent enforcement actions against consent decree violations such as Live Nation.11See Anne Steele & Brent Kendall, Live Nation Reaches Agreement Over Antitrust Concerns, Wall St. J., Dec. 19, 2019, https://www.wsj.com/articles/live-nation-reaches-tentative-settlement-with-justice-department-over-antitrust-concerns-11576784582. With an office like ODEC, the Division now has a unit dedicated to these efforts for more streamlined enforcement. The office will lead efforts including standardizing decree terms and conditions, monitoring compliance, and then litigating to enforce when necessary.

The Division also recently established the Civil Conduct Task Force (CCTF), which has the primary responsibility for the investigation and prosecution of (non-merger) civil conduct matters. The CCTF is comprised of both a core group of fully dedicated attorneys and attorney designees from each of the six civil sections as well as from the Division’s three field offices. The purpose of the task force is to ensure that the Division is moving the law forward on conduct matters by allocating appropriate resources to conduct cases and by prioritizing conduct matters that have the highest likelihood of success or the highest likelihood of moving the law forward. In the past, the statutory timing demands of merger cases often put civil conduct cases on the back burner. By creating a unit dedicated to investigating civil conduct that draws on the expertise of the various litigating sections, however, the Division will be more effective in handling civil conduct matters and citizen complaints.

 

Gans: How do you judge the success of your expanded litigation advocacy efforts, such as intervening as amicus early in matters? What have they achieved, why are they important, and should these efforts continue?

Delrahim: I am quite pleased with the results of our amicus program. Over the last several years, we significantly increased our efforts to intervene in difficult and important antitrust lawsuits, both in statements of interest in the district courts or in amicus briefs in the appellate courts. Since 2018, we have filed over 40 amicus briefs, including a record 24 briefs in 2019, and at least 14 this year. For comparison, in 2017, the Division filed just 4 amicus briefs. By our reckoning, our running record stands at 23-1 in terms of courts adopting our proffered analysis where they reached the issues we addressed.

Our amicus efforts supplement our primary investigative and litigation efforts, allowing us to participate in a cost-effective way and thereby facilitating our participation in more antitrust litigation across the country. For instance, our amicus brief in Seaman v. Duke, a no-poach case, helped us to secure a consent decree while expending less than 1% of the resources we typically would deploy to investigate and prosecute fully a similar matter.12Statement of Interest of the United States of America, Seaman v. Duke University, No. 15-462 (M.D.N.C. 2019), available at https://www.justice.gov/atr/case-document/file/1141756/download.

These amicus efforts are also important because many judges have limited or no direct experience adjudicating antitrust issues. These cases are tremendously important because they have the power to shape important changes in underlying industries, so it is critical that courts reach the right conclusions for the right reasons. Our amicus program allows us to help clarify tricky issues for these courts, bringing our decades of enforcement experience to bear, and helping to achieve beneficial case law developments.

Many of the cases in which we intervene involve, for instance, antitrust exemptions and immunities such as those shielding specific industries and government or quasi-governmental actors. Many others address thorny questions at the intersection of antitrust and IP laws. Our statement of interest in Continental v. Avanci, mentioned above, involved allegations that a breach of a FRAND commitment by a SEP holder could constitute a violation of Sherman Act Section 2. This is an important area where case law is still developing, and where incentives to preserve innovation and dynamic competition are very much at stake. The district court specifically noted that our submission “assist[ed] the Court in evaluating Plaintiff’s monopolization claim,” and it largely adopted the reasoning and conclusions our statement espoused.

We are seeing many positive outcomes from our amicus efforts, and I hope that future Assistant Attorneys General will recognize the value and utility of these interventions. The Division has a trove of antitrust experience and insights that can assist generalist courts and judges in tackling difficult issues. In our experience, judges often appreciate the Division sharing its experiences and insights, which can help to elucidate the analysis and to identify the critical factors on which the court should focus in considering various claims and defenses.

 

Gans: What are your thoughts on whether the Hart–Scott–Rodino Antitrust Improvements Act (HSR Act), rules, or interpretations should be changed, and what role do you think the SEC should have in the discussion?

Delrahim: The HSR Act is key to modern merger enforcement. We learn about most of the transactions that we ultimately investigate and challenge through the procedures the HSR Act establishes. The Act is designed to enable us to determine whether a proposed merger or acquisition may violate the antitrust laws before it is consummated, in order to avoid any potential competitive harms from being realized. The HSR regime has important implications not only for industry incumbents and potential entrants, but also for investors, whose behavior is likewise affected by the landscape the HSR Act helps to shape.

Over time, as the economy changes and as our understanding of when competitive harms are likely to arise develops, it is appropriate to update the HSR Act and its corresponding rules and interpretations. One of my goals as Assistant Attorney General has been to right-size the HSR regime to account for developments in the decades since the HSR Act was first implemented. Relevant factors include changes in the economy, developments in our understanding of which transactions may raise competitive concerns, and changes in the investment landscape and to investor behavior.

To these ends, in 2020, I concurred in the FTC’s Federal Register publication of a Notice of Proposed Rulemaking (NPRM) to revise the premerger notifications rules implementing the HSR Act. The NPRM proposes, among other things, to create a new reporting exemption for certain de minimis investments of 10% or less. I advocated for this exemption in order to address the regulatory burdens of an overbroad HSR requirement on certain minority investments that do not raise competitive concerns. Our experience over decades demonstrates that the transactions this exemption would cover are not ones which are likely to raise any competitive concerns. Our enforcement regime should be guided by and responsive to such compelling evidence.

Insights from other federal agencies with related experience, like the SEC, play an important role in our decisions to update various rules. The SEC is particularly well-versed as to questions of how regulatory requirements might affect investor behavior. I am pleased to report that our recent efforts to update the HSR Act’s rules and interpretations are informed by the SEC’s insights and by important conversations between staff and leadership at both agencies.

As Assistant Attorney General, I have gained a deeper appreciation for the importance of cooperation between our two agencies to achieve our various goals. To foster this cooperation, earlier this year SEC Chairman Jay Clayton and I announced a first-ever Memorandum of Understanding (MOU) between our two agencies. The MOU extends the strong working relationship that we have developed. It will lead to even greater collaboration in the coming years, ensuring that we have efficient and effective regulations, as well as competitive financial markets.

 

Gans: In the past, it has been said that there is a good deal of consensus on objectives, and differences at the margin on specific enforcement decisions. Is that changing? What could be the effect on antitrust enforcement if it becomes more politicized or there are wide divergences about the appropriate goals for antitrust? What is your view on calls to change the consumer welfare standard?

Delrahim: For several decades, we’ve had the fortune of consensus on the goals of antitrust law; almost everyone agreed consumer welfare should be the lodestar of enforcement. Unfortunately, this bipartisan agreement has been imperiled recently, as some have pushed for antitrust law to embrace a broader set of political and social goals, including addressing income inequality, unemployment, concentration of political power, and even racism. These critics seek changes through re-interpretation of the law or through new legislation—but it’s important to keep in mind that their calls are not unprecedented.

In fact, such claims have arisen several times since the antitrust laws were first adopted. Over 80 years ago, for instance, Americans were having the same discussions that we are having today about the goals of antitrust enforcement. My personal hero, former Attorney General and Supreme Court Justice Robert Jackson, wrote an article in 1937 called “Should the Antitrust Laws be Revised?”13Robert H. Jackson, Should the Antitrust Laws be Revised?, 71 U.S. L. Rev. 575 (1937) (address before the Trade and Commerce Bar Association and Trade Association Executives, Sept. 17, 1937), available at https://www.roberthjackson.org/speech-and-writing/should-the-antitrust-laws-be-revised/. In it, he observed that “[i]n some industries pay rolls [have] almost vanished,” that “[c]oncentration of corporate ownership of wealth . . . has proceeded to a surprising degree,” and that “[t]he small business man who used to be our most ardent capitalist . . . has been crushed, or merged, or consolidated, or otherwise retired.”

Thankfully, our public figures and elected officials have beaten back the calls for a dramatic overhauling of the antitrust laws in recent years—which has fostered impressive and world-leading innovation and economic growth in America. Despite recent calls for changes to the objectives of antitrust law, I steadfastly believe that our markets should continue to be shaped by competition, rather than by economic regulation aiming to achieve specific social or political goals. I hold this view both because competition in the market economy can yield the best innovations and lowest prices for American consumers, and because enforcement actions aimed at improving democracy carry too great a risk of inadvertently undermining democratic accountability.

Although questions about income inequality, jobs, and race have an important place in our politics, they have less of a home in antitrust enforcement. Changing the consumer welfare standard to serve amorphous political goals would lead only to greater incoherence within antitrust law and more uncertain business and political climates, as enforcers are required to weigh competing social values. This would put unelected enforcers in the unsavory position of having to make political decisions properly left to the elected officials. Moreover, with so many possible justifications for an enforcement decision in a socio-political antitrust regime, it would become easy for enforcers to hand-wave and escape accountability. This is especially true given the complexity of the questions enforcers would confront. It is complex enough to ascertain the first-order effects of a transaction on competition; assessing whether a given transaction has a trickle-down effect on inequality justified by an increase in jobs, for instance, is all the more difficult. We must therefore be careful not to end up exchanging potential market power wielded by companies for political power wielded carelessly by the government, especially if those who hold that political power are unelected.

 

Gans: What is your view concerning presumptions in antitrust analysis?

Delrahim: Presumptions of illegality may be good policy when our experience tells us that certain determinative factors are reliable in determining the likely effects of the merger or the conduct. Where that is the case, and where the real controversy of the case is whether there are efficiencies or other justifications for the merger or the conduct, antitrust enforcement will be more predictable and efficient if a presumption shifts the burden to the defendants to prove those countervailing factors.

Appropriate presumptions can help to focus enforcement efforts on conduct most likely to violate the antitrust laws, to exclude from those efforts conduct unlikely to harm competition, and to make prosecution of such cases more efficient; they can also provide more guidance to private parties. Inappropriate presumptions, however, might have unintended or undesirable effects on competition. So presumptions should be deployed judiciously.

Antitrust analysis often is a fact-intensive endeavor, but certain presumptions are foundational parts of the doctrine. As Justice Hugo Black explained in Northern Pacific Railway, the per se rule is a type of presumption: “there are certain agreements or practices which, because of their pernicious effect on competition and lack of any redeeming virtue, are conclusively presumed to be unreasonable, and therefore illegal, without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Presumptions can be beneficial if they provide “more certain[ty] to the benefit of everyone concerned” and “avoid[] the necessity for an incredibly complicated and prolonged economic investigation.”14Northern Pac. R. Co. v. United States, 356 U.S. 1, 5 (1958).

I would certainly prefer presumptions to be codified by the legislative branch to maximize democratic accountability and predictability for the businesses that will be subject to them. The antitrust agencies can and should advise Congress on appropriate evidence-based factors that follow from our experience as enforcers.

In addition to presumptions of harm to competition or illegality, antitrust may also consider presumptions relating to likely benefits or legality. Two elements of the new Vertical Merger Guidelines, which were released in June, illustrate this issue.15Vertical Merger Guidelines, U.S. Dep’t of Justice & Fed. Trade Comm’n (June 30, 2020), available at https://www.justice.gov/atr/page/file/1290686/download. The first is the 20% quasi-safe harbor that appeared in the draft guidelines released in January 2020, which stated that “The Agencies are unlikely to challenge a vertical merger where the parties to the merger have a share in the relevant market of less than 20 percent, and the related product is used in less than 20 percent of the relevant market.”16Draft Vertical Merger Guidelines, U.S. Dep’t of Justice & Fed. Trade Comm’n (released for public comment Jan. 10, 2020), available at https://www.ftc.gov/system/files/documents/public_statements/1561715/p810034verticalmergerguidelinesdraft.pdf. This issue garnered significant attention, and we received numerous comments. Some commenters argued that 20% is too low, while others argued that the quasi-safe harbor should not exist at all. These comments illustrate the importance of being cautious in creating a safe harbor, and that language did not appear in the final guidelines.

The second is the treatment of the elimination of double marginalization (EDM), which is an efficiency that parties to a vertical merger sometimes claim. Specifically, companies in a vertical relationship sometimes claim that they are each charging consumers a markup—a double margin, so to speak—and that as a single, combined firm the markup would be lower. The incentive of the combined firm, they say, is to eliminate double marginalization and lower price to consumers. EDM is an important component of almost any vertical case. The new Vertical Merger Guidelines make clear that the agencies will not just presume EDM and call it a day, but that it is incumbent on the parties to identify and show EDM, and that the agencies will investigate and conduct the necessary fact-intensive analysis to verify EDM.

The bottom line, in my view, is that presumptions can help enforcers to focus our time and resources on conduct most likely to prove harmful while providing additional clarity about how the antitrust laws apply in specific cases. But presumptions should be based on truly compelling evidence and experience so as to best foster competition and consumer welfare.

 

Gans: You have had a great career, serving the public interest in both the legislative branch and executive branch. What’s next?

Delrahim: In the immortal words of Steve Jobs, my aim is “to get in a little over [my] head and make a dent in the universe.”

Makan Delrahim

Adjunct Lecturer in Law

University of Pennsylvania


Svetlana Gans

Vice President & Associate General Counsel

NCTA


Antitrust & Consumer Protection

Federalist Society’s Corporations, Securities, & Antitrust Practice Group

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