Antitrust Enforcement in the Obama Administration: Does Reality Match the Rhetoric?

In her first speech as Assistant Attorney General in charge of the Antitrust Division of the Department of Justice (DOJ), Christine Varney proclaimed that the DOJ “must change course and take a new tack” in its enforcement efforts. Although her speech, one year ago, focused on Section 2 of the Sherman Act, many members of the antitrust bar believed at the time that it heralded a new era of “vigorous enforcement” of antitrust laws generally.

On the heels of that speech, we issued an Antitrust Alert anticipating a sea change in the DOJ’s enforcement policy. In that same Alert, we pointed out that a similar policy change was not expected at the Federal Trade Commission (FTC), largely because the FTC’s enforcement policy has been more consistent over the years and less susceptible to changes in the political landscape. Now, one year after Ms. Varney’s speech, we find that only some of our earlier predictions have come true. The FTC continues to behave like a rigorous enforcement machine. By all appearances, however, the DOJ has not followed through on its promised pro-enforcement agenda – at least not yet. Is the Obama Administration’s DOJ merely a paper tiger? Or is it too soon to tell? In order to help answer those questions, we assess the enforcement activity – or lack thereof – by the DOJ and the FTC over the past year.

Click on the PDF link above to view the full alert.