A Sea Change in Antitrust Enforcement: How Antitrust Compliance Can Be a “Cost Savings Program” for U.S. Companies

The Biden administration made it clear from its earliest days in office that antitrust enforcement would undergo a major sea change under new leadership at the Department of Justice (DOJ) and Federal Trade Commission (FTC).

“We feel strongly that we are playing a role in our democracy in responding to the will of the people,” said Timothy Wu during a speech to the ABA Antitrust Law Section in November 2021. “Polls show that the public is truly concerned that the federal government should do more about the power of monopolies in order to make the economy more fair and competitive.”

Wu is a member of the White House Competition Council and was a key figure in creating President Biden’s 2021 executive order to ramp up government enforcement of antitrust laws.

“President Biden has assembled the most aggressive antitrust team in decades, stacking his administration with legal crusaders as it prepares to take on corporate consolidation and market power,” the New York Times reported.

Two years into the Biden presidency, with some important learnings under the DOJ’s belt and a full head of steam worked up, 2023 may turn out to be one of the most consequential years for antitrust enforcement in recent memory. The president wants to increase antitrust spending at the DOJ this year by $100 million, a record annual increase, the DOJ is preparing new draft merger guidelines that are expected to be less friendly to businesses and withdrawn other longstanding antitrust policy statements that had been in place for decades, and official DOJ enforcement actions have begun to accelerate.

For example, the MLex® daily press round-up of U.S. antitrust news on March 15, 2023, reported on nine different stories involving businesses confronting antitrust regulators. These ranged from litigation developments, such as the Department of Justice’s lawsuit to block the Jet Blue-Spirit Airlines merger, to corporate compliance requirements, such as Albertsons Companies’ divestiture of some stores in order to obtain the regulatory clearance needed to go ahead with its merger with Kroger.

To be clear, antitrust observers point out that the increased antitrust enforcement posture taken by the Biden administration has not yet proven to be a sudden death knell for U.S. businesses that land on the DOJ’s radar.

“As the Biden administration seeks to ramp up enforcement to correct for what the president has described as a failed experiment of under-enforcement against anti-competitive conduct and mergers, the FTC and DOJ have run into a series of stinging losses from federal judges highly skeptical of their most aggressive competition theories,” reported Law360® on February 24, 2023.

But in spite of their recent setbacks, federal regulators show no signs of shifting their focus on antitrust enforcement.

Chris May, antitrust reporter for MLex, spoke recently to a key official in the DOJ who made the case that U.S. companies should be making appropriate investments in their antitrust compliance processes and procedures now, rather than after an enforcement action is undertaken.

“Firms facing potential criminal antitrust violations can expect the likelihood of a deferred prosecution agreement will continue to grow as companies make further investments in compliance programs,” May wrote.

May explained that, even in cases where compliance policies fail to prevent antitrust law violations from occurring or the avoidance of prosecution altogether, robust compliance programs increase the chance that companies will “win the race for DOJ leniency” and may result in credit during charging and sentencing stages.

“Compliance is sometimes termed like a cost center,” said DOJ counsel Rebecca Ryan, at a February 2023 event May covered for MLex. “I think it should be seen as a cost savings center. Investing in compliance should be a good business strategy.”

Ryan revealed that the DOJ is currently hearing more presentations on compliance programs as part of antitrust investigations “and it’s being considered in our charging decisions,” she said.

MLex is an investigative news agency dedicated to uncovering regulatory risk and provides exclusive, real-time market insight and analysis. From 14 bureaus worldwide, MLex journalists focus on monitoring the activity of governments, agencies and courts to identify and predict the impact of legislative proposals, regulatory decisions and legal rulings.

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