GAL COMPETITION PROJECT
UNITED STATES
Mandate and Due Process Norms
Harry First, Eleanor Fox,
and Daniel Hemli
February 4, 2011
ANTITRUST ENFORCEMENT
STRUCTURE: U.S.
Federal Trade
Commission
Department Justice
Antitrust Division
Federal Law
Fifty U.S. State AGs, plus
4 U.S. Territories and the District Columbia
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AND THERE’S MORE . . .
Private Enforcement
Federal Law
State Law
U.S. Sectoral Agencies
50 U.S. State AGs,
etc.
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MANDATES
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DOJ: bifurcated judicial model
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FTC: integrated agency model, but…
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Executive branch: AAG
civil and criminal
competition advocacy
lacuna on trade
5 Commissioners
unfair methods of competition/“unfair or deceptive acts or
practices”
competition advocacy
State AGs: elected
Coordination: networked enforcement
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INVESTIGATION
DECISION TO PROCEED
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DOJ
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staff opportunities: white papers
criminal process somewhat different
AAG: the decider
FTC
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staff opportunities
BE and BC separate recommendations
approaching Commissioners separately
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ADJUDICATION AND APPEALS
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DOJ
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FTC
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litigation in civil and criminal courts
court litigation: preliminary injunctions
“Part 3” administrative litigation: ALJs
appeals to the Commission: independence?
Appellate review
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EQUALITY
NON-DISCRIMINATION
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The exemplar: Zenith v. Matsushita
Merger enforcement?
And how ‘bout those cartels?
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68 of the 80 firms fined $10 million or more
were non-U.S. firms
16 of the 18 firms fined $100 million or more
were non-U.S. firms
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PROPORTIONALITY
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Not technically required
Civil remedies: tailoring
Criminal penalties
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U.S. Sentencing Guidelines
fines: harm/fault based
jail terms: difficult to say
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FLASH POINTS
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Multiple enforcement
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potential inconsistencies in results
potential unfairness to defendants
but: benefits of decentralized enforcement
FTC procedures
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lack of separation of functions
Commissioner as ALJ
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