Developments at the Antitrust Division: Recent Enforcement and Policy Developments—New Tools and New Theories

Sullivan & Cromwell LLP - November 28, 2018

On November 15, 2018, Assistant Attorney General Makan Delrahim delivered remarks at the American Bar Association Antitrust Section Fall Forum in which he discussed three recent settlements of ongoing civil and criminal investigations and highlighted efforts by the Antitrust Division of the U.S. Department of Justice to streamline the merger review process. There are several unusual aspects to the Division’s recent actions, including the Division’s use of Section 4A of the Clayton Act to recover civil damages where the government has been harmed by anticompetitive conduct and the Division’s willingness to police the sharing of information among competitors even where that conduct is not alleged to have had an actual impact on price. Moreover, the Division’s recently announced changes to the merger clearance process demonstrate a divergence in timing and process between the Division and the Federal Trade Commission, amplifying the importance of which entity will review a given transaction.