The Curious Case of The Federal Prosecutor Who Sided With Defendants

By: Michael Kades (Equitable Growth)

Antitrust policy has been front and center in U.S. public policy debates over the past few years. The House Judiciary Committee recently completed its investigation into digital markets. Senate Democrats introduced multiple bills to reform antitrust laws. Even the comedian Jon Oliver devoted an episode of his show to concentration and market power.

The leadership at the Antitrust Division of the U.S. Department of Justice and U.S. Attorney General William Barr missed the memo. Antitrust enforcement by the Department of Justice is at historic lows, yet the Department of Justice is breaking new ground in one area—siding with defendants in antitrust actions brought by other enforcers, the Federal Trade Commission and state attorneys general.

Let’s look at three cases that are emblematic of this antitrust tilt toward defendants in antitrust cases brought by other antitrust agencies. As Equitable Growth recently reiterated, the United States has a monopoly power problem. During this critical moment, however, the Trump administration’s antitrust legacy at the Department Justice may be to limit the ability of the antitrust laws to combat that problem. Rather than criticizing other agencies for bringing cases, the leadership at the Department of Justice and its Antitrust Division would better serve the country by enforcing the law…

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