U.S. Department of Justice Antitrust Division

Letter from Acting AAG Richard Powers

Geisinger/Evangelical, CPI/GD navigated the challenge of organizing Satcom, Waste Management/ the ICN annual conference remotely. Advanced Disposal, and Harvard As the Acting Assistant Attorney Pilgrim/Tufts—as well as the General, it is my privilege to work landmark Section 2 litigation against with the Division’s phenomenal staff Google. Last year, the criminal as we continue our critical work program obtained fines and penalties through this transition period. The totaling $529 million—a five-year civil servants who work for the high—against defendants including Division are deeply invested in generic drug companies and a cancer promoting competition and making treatment center. And most recently, Richard Powers the economy fairer for all Americans. Acting Assistant Attorney General one of the nation’s largest chicken I am grateful to them and intend to producers pled guilty to price fixing make sure that all employees are and was sentenced to pay a $107 fully supported and empowered to am pleased to present the Antitrust million criminal fine. Moreover, since do their important work and that we Division’s Spring Newsletter, which the pandemic began, criminal teams I remain a process driven organization. illustrates the outstanding work by have indicted nine cases totaling 25 the Division over the past year. defendants. The Appellate Section Diversity is critical to the Division’s Thanks to the dedication of the has authored or co-authored briefs in mission. We are committed to a Division’s employees, we’ve important cases concerning the state workplace grounded in fairness and continued our efforts on behalf of action doctrine, the application of equality, along with a workforce that American consumers, workers, and the antitrust laws to amateur sports is tolerant and representative of a taxpayers despite the crisis posed by leagues, and concerted action in range of personal and professional COVID-19. Our teams have been labor markets. The Competition backgrounds and perspectives. In putting in long hours remotely, even Policy and Advocacy Section has support of a more just and inclusive as many staff members balance their worked overtime to rapidly issue Antitrust Division, our managers are work with family obligations. Their business review letters regarding being trained to consider diversity in hard work has paid off in the past coordination between businesses the hiring process to the fullest year with victories for consumers in designed to combat COVID-19, and extent allowed by law and merger cases including Visa/Plaid, the International Section has ably Department of Justice policy.

1 U.S. Department of Justice Antitrust Division Spring Update 2021

New Faces in the Division

In the United States, we have multiple collusion affecting government antitrust enforcers, including our spending and taxpayer dollars— colleagues at the FTC and the offices of including the vast sums of the attorneys general of each state. We allocated to maintain economic stability aim to cooperate with our partners and fight the pandemic. The Division’s whenever possible, and, should we civil sections will continue to protect disagree, we will work together to and promote competition across the resolve our differences in a way that economy by investigating mergers and balances our respective interests and policing anticompetitive civil conduct. furthers our collective goal of For the foreseeable future, Section 2 Amanda Barnes promoting competition and maintaining violations will continue to be a focus for Trial Attorney, New York Office a fair economy. We are also constantly civil investigations. And finally, our What was your background in touch with our international partners Appellate, Competition Policy and before joining the Antitrust at competition authorities across the Advocacy, and International sections Division? globe, as we must be, given the will continue to represent the interests worldwide scope of modern of American consumers in appellate I joined the Division through the anticompetitive behavior. courts, with domestic stakeholders, and Honors Program from the around the world. American University Washington The coming months will undoubtedly be College of Law. At AUWCL I was a eventful ones, but I am confident that When the Division’s new leadership member of the American the Division will rise to any challenges arrives, it will find that our talented University Law Review, Vice Chair that come our way. The Division’s career staff have continued to carry out of the Student Bar Association’s criminal sections will continue the Division’s mission during this Election Commission and the investigating and prosecuting not only transition period, despite the ongoing South Asian Law Student the price fixing of consumer and food pandemic and our limited resources. Association. I represented a products, but also per se illegal We look forward to welcoming our client in D.C. Superior Court as a collusion that harms American workers. incoming leadership team and working student attorney in the Civil And we will continue against alongside them. Advocacy Clinic and taught a year-long constitutional law class  in a D.C public school as a Diversity Committee Update Marshall-Brennan Constitutional From supporting the Justice Office—the only female African- Literacy Project teaching fellow. Department’s Diversity and Inclusion American special agent in charge. Prior to law school I graduated Dialogue Program (DIDP) to creatively from Hamilton College with a The Committee is proud to report on re-imagining diversity programs for the B.A. in classical studies and several other accomplishments from its virtual telework environment, the worked on a(n unsuccessful) NYC five subcommittees: Disability; City Council campaign, at an Division’s Diversity Committee has Management Culture, Retention, and executive recruiting firm, and as brought together employees from Training (MCRT); Outreach; Support a litigation paralegal at a large around the Division over the past year Staff; and Women’s Subcommittee. law firm. to promote a more inclusive culture. Following the successful “Disability and This year, the Committee hosted the Why did you decide to join the Inclusion Speaker Series” session with Antitrust Division’s Seventh Annual Division? Dr. Kay Redfield Jamison, Co-Director of Diversity Celebration featuring remarks the Mood Disorders Center and I was drawn by the Division’s from Voviette Morgan, FBI Special mission-driven work—the idea of professor at Johns Hopkins University, Agent in Charge (SAC) of the Criminal protecting the American the Disability Subcommittee continued Division for the Los Angeles Field consumer from injuries and to promote mental health awareness by

2 U.S. Department of Justice harms they are not in a position Antitrust Division Spring Update 2021 to see, let alone combat.

What do you like best about your current work? My favorite thing about my current work is being able to work closely with and learn from experienced trial attorneys. In the six months I have been with the Division I have had so many opportunities to learn about and observe good lawyering thanks to the attorneys who have taken me under their wings!

Clockwise from top left: Matthew Hammond (Ass’t Chief, Telecommunications and Broadband Section), FBI SAC Voviette Morgan, Tee St. Matthew-Daniel (Ass’t Chief, New York Office), and Michelle Rindone (Ass’t Chief, International Section). Hammond and St. Matthew-Daniel served as Co-Chairs of the Diversity Committee this past year. Not pictured: Jeff Negrette (Trial Attorney, Civil Conduct Task Force) who rotated in as a Co-Chair of the Diversity Committee at the beginning of 2021.

providing mental health information The Outreach Subcommittee hosted a Mark Chicu and resources on the Division’s series of virtual recruiting panels for Economist intranet. In a similar vein, MCRT 2021 college graduates to encourage focused on education and sponsored more applications to the Division’s What was your background implicit bias training, attended by more Paralegal Program from historically before joining the Antitrust than 50% of the Division’s employees. underrepresented groups. Each panel Division? The highly anticipated program focused featured a candid discussion between I was at an economic consulting on mitigating the impact of unconscious current paralegals, paralegal firm for over seven years, bias in key workplace situations and supervisors, and/or trial attorneys working mainly in antitrust achieving long-term behavioral change. about their paths to the Department of across a broad range of Justice. Students were also able to ask The Women’s Subcommittee, in industries. Before that, I questions about public service, career collaboration with the Antitrust completed my Ph.D. in development, transitioning from college Division’s Career Development Working economics at Northwestern to work, and simply being successful in Group and Executive Office, launched University, and specialized in a dynamic workplace where diversity is stand-alone lactation and wellness industrial organization, thinking celebrated and supported. The rooms in Antitrust Division offices to be about the same kinds of issues Outreach Subcommittee also hosted a used by employees in need of privacy. that confront us every day here in the Antitrust Division.

Why did you decide to join the Division? The Antitrust Division is the best place to be for someone interested in the issues raised by antitrust. On top of that, the colleagues are outstanding, the

3 U.S. Department of Justice mission to protect consumers is Antitrust Division Spring Update 2021 highly motivating, and the collegiality and close collaboration between virtual “Intern Day” for the Division’s Finally, the Committee launched a new economists and attorneys makes summer interns. Veteran’s Subcommittee, which will it an excellent place to work. focus on improving the recruitment and The Support Staff Subcommittee hosted retention of veterans and reservists, What do you like best about your a very successful Paralegal Flash and increasing awareness of their current work? Mentoring Program, which provided valuable contributions to the Division’s critical connections and career Staff—regardless of rank—are mission. The Committee has ambitious for Division paralegals. given a lot of responsibility and plans for the coming year and intends Relaunched in 2020 as a virtual event, it are put in a position to make to continue promoting diversity, really significant contributions to drew first-time participants from the inclusion, equity, and access initiatives. their cases. It’s been very Division’s Chicago, New York, and San rewarding to play a major role in Francisco offices. the course of an investigation.  Civil Enforcement Organizational Changes This past year, the Antitrust Division across the Division. In addition, one created two new offices within its civil attorney from each of the other civil enforcement program—the Civil litigating sections has been designated Conduct Task Force and of to spend part of their time working with Decree Enforcement and Compliance, CCTF. renamed the Office of Civil Operations The Office of Decree Enforcement and and clarified its responsibilities, and Compliance (“ODEC”) has primary reapportioned commodities within the Alex Gross responsibility for judgment civil litigating sections. The Division also Economist enforcement in civil matters and works promoted a number of new managers with the Division’s civil litigating What was your background and other career attorneys throughout sections, judgment monitors, and before joining the Antitrust the civil enforcement program. compliance officers to ensure that Division? The Civil Conduct Task Force (“CCTF”) consent decrees are effectively I entered the Division directly works with the Division’s other civil implemented and parties comply with from graduate school (University litigating sections as well as the the decrees’ requirements. ODEC also of Virginia). Division’s New York, Chicago, and San advises the Division’s criminal sections Francisco offices to identify and pursue when parties seek credit at the charging Why did you decide to join the conduct investigations that require stage for corporate compliance Division? additional focus and resources. CCTF is programs. Lawrence (Larry) Reicher has I liked the idea of my work having dedicated to investigating and been named Chief of ODEC. Ashley an immediate and tangible prosecuting civil violations of the Kaplan and Michele Trichler joined impact compared to academic antitrust laws in collaboration with ODEC in 2021 as trial attorneys to work research. I also believe in the attorneys from the other civil litigating on all aspects of ODEC’s mission. mission of the Division to protect sections who have relevant industry The Office of Civil Operations (“OPS”) American consumers, which is an experience. Lee Berger has been named (formerly the Office of Operations) was important motivator for me. Chief of CCTF and Miriam (Mimi) Vishio renamed to reflect its primary focus on has been named Assistant Chief. CCTF’s the civil enforcement program. OPS What do you like best about your full-time staff includes two career coordinates and implements policies current work? attorneys, Jeffrey Negrette and and procedures affecting the Division’s Kathleen Kiernan, who have experience I like that I’m able to apply many civil enforcement program and serves of the skills I learned in grad working on conduct matters in sections as a resource for the Division’s civil

4 U.S. Department of Justice school to practical, tangible Antitrust Division Spring Update 2021 problems. Not everyone gets the luxury of working in their field, so I’m grateful for that. Also, I’ve litigating sections on issues of Division The renamed sections are: Financial learned a lot from working with policy and practice. It advises civil staff Services, FinTech, and Banking (FFB); the attorneys. I enjoy seeing how on substantive and procedural issues Media, Entertainment, and economics fits into the puzzle of and reviews and analyzes all civil Communications (MEC); and a case, and I’ve found that recommendations submitted for Front Technology and Digital Platforms (TDP). there’s a lot of fruitful feedback Office approval (e.g., second requests, The new section names were approved between economists and civil investigative demands, by Congress on January 4, 2021. attorneys. settlements, recommendations for Finally, in addition to the individuals enforcement actions). OPS facilitates mentioned above, the Division collaboration across the Division’s civil promoted a number of other talented enforcement program. Amy R. and dedicated career employees to Fitzpatrick has been named Chief of positions of leadership within the civil OPS. OPS is also staffed with a number enforcement program: Jennifer Dixton of Counsel for Civil Operations: Tracy was named Assistant Chief of the Fisher, Soyoung (Jenny) Choe, and Competition Policy and Advocacy Elizabeth A. Gudis. They are Section; Nickolai Levin was named experienced career attorneys with a Assistant Chief of the Appellate Section; Malika Krishna combined 35 years of service with the William Jones was named Counsel to Economist Division and a broad range of the Director of Civil Litigation; Chan experience in the Division’s civil Mazumdar was named Special Counsel What was your background enforcement program. for Agriculture; James Attridge was before joining the Antitrust The Division recently reallocated and named Acting Chief of Staff to the Division? redistributed responsibility for a Assistant Attorney General; Cory Brader Prior to joining the Division, I number of commodities across its civil Leuchten was named Senior Counsel to worked in economics consulting litigating sections, in order to balance the Assistant Attorney General; Thomas for several years. the workload across the sections and DeMatteo was named Attorney Advisor consolidate expertise in similar to the Assistant Attorney General; and Why did you decide to join the commodities within each section. Daniel Guarnera was named Counsel to Division? Several sections have been renamed to the Assistant Attorney General. Having had the opportunity to reflect their new mix of commodities. work with Division economists  and attorneys while I was in Spotlight on Litigation consulting, I wanted to join EAG because I had seen the high In the face of the unique challenges individuals and six companies in quality of work, focus on posed by the pandemic, the Antitrust jurisdictions across the country— economics, collegial Division has remained undeterred in including nine cases charged since the environment, and commitment challenging violations of the antitrust COVID-19 declaration of emergency in to getting to the right answer. laws. The Division has numerous March 2020. If all 13 trials proceed this What do you like best about your upcoming criminal trials. In addition, an year, it will mark the largest number of current work? upcoming civil trial against Google— trials in the modern era of criminal scheduled for 2023—has attracted antitrust enforcement, since the advent I like that we are always learning widespread public attention. of the modern leniency policy in 1993. in this job because every industry The Division’s litigation efforts is different, every case is Criminal Litigation demonstrate its commitment to different, and therefore the The Division’s prosecutors are protecting competition in critical economics is different. I find our preparing for 13 trials against 24

5 U.S. Department of Justice work at the Division to be Antitrust Division Spring Update 2021 creative and exciting.

markets, including food, healthcare, labor markets, and financial services.

Photo credit: Olga Kurbatova/iStock/Getty Images Plus Healthcare Photo credit: digicomphoto/iStock/Thinkstock Amid the pandemic, the Division has redoubled its efforts to prosecute illegal Food conduct that corrupts vital healthcare The Division is committed to ensuring markets. Alisa Mastro that companies and executives that Trial Attorney, San Francisco conspire to fix prices for household In August 2020, a federal grand jury Office staples are held accountable, and that returned a superseding indictment American consumers benefit from against two generic pharmaceutical What was your background competition when purchasing the most companies, Teva Pharmaceuticals USA, before joining the Antitrust basic necessity, food. Inc. and Glenmark Pharmaceuticals Inc., Division? USA, for their participation in In the packaged seafood industry, the Before joining the Division, I conspiracies to fix prices, rig bids, and former CEO and president of Bumble worked in private practice in allocate customers for generic drugs. Bee Foods, LLC was convicted following Washington, D.C. where I got The Teva-Glenmark indictment follows a four-week trial in San Francisco. In exposure to both transactional the February 2020 indictment of a and criminal antitrust matters. I June 2020, he was sentenced to serve former senior executive in the generic- was fortunate to work with and 40 months in prison and to pay a pharmaceutical industry, for his role in learn from experienced and $100,000 fine for his leadership role in a conspiracies to fix prices, rig bids, and supportive antitrust lawyers, conspiracy to fix prices of canned tuna allocate customers for generic drugs, including DOJ alumni, on a in the United States. This conviction and for making a false statement to variety of matters touching on followed the guilty pleas of three tuna- federal agents who were investigating different industries and issues. industry executives and two major those conspiracies. The cases are While at the firm, I had the packaged seafood companies, Bumble pending in Philadelphia, Pennsylvania. opportunity to move to California Bee and Starkist, which were sentenced for a secondment at a client to pay $25 million and $100 million in In September 2020, a federal grand jury where I learned about antitrust criminal fines, respectively. indicted the founder and former and competition issues from the president of Florida Cancer Specialists & In the broiler chicken industry, one of in-house perspective. Research Institute LLC (FCS) for his the country’s largest broiler chicken participation in a conspiracy to allocate Why did you decide to join the providers, Pilgrim’s Pride Corp. (PPC), medical and radiation oncology Division? pleaded guilty to its part in a conspiracy treatments for patients in Southwest to fix prices and rig bids in the sale of It began with a great internship Florida. The indictment charges him broiler chicken products. In February experience with another DOJ with conspiring with a competing 2021, PPC was sentenced to pay division during law school. And oncology group to suppress approximately $107 million as a ever since antitrust became my competition relating to cancer criminal fine. PPC’s conviction followed area of practice I’ve wanted to treatments offered by the companies in the indictment of ten individuals, contribute to the Division’s southwest Florida. The conspiracy including two former CEOs of PPC, for important work. While in private limited the choices available to cancer their roles in the conspiracy. The case practice I became interested in patients for integrated care and against the individuals is pending in industries that have become a enabled FCS and the competing Denver, Colorado. focus for the Division, so I oncology group to operate in the region jumped at the opportunity to with minimal competition. FCS was work on these challenging and charged by information in April 2020,

6 U.S. Department of Justice fascinating issues when I had the Antitrust Division Spring Update 2021 chance.

What do you like best about your and entered a deferred prosecution conspired to pay lower rates to certain current work? agreement where it agreed to pay a physical therapists and physical Even though we’ve all been $100 million criminal penalty. The case therapist assistants in North Texas. The working remotely, it has been so is pending in Fort Myers, Florida. case is pending in Sherman, Texas. engaging to work with smart, In January 2021, a federal grand jury dedicated attorneys and indicted Surgical Care Affiliates, LLC economists on novel and complex issues. I also love diving Photo credit: NanoStockk/iStock/Getty Images Plus (SCA) and its related entity for participating in conspiracies not to into factual investigation to Labor Market understand different products solicit senior-level employees from its and markets. The Division remains focused on competitors. SCA owns and operates protecting the American worker by outpatient medical-care centers across

ensuring labor markets are free from the country. The indictment charges collusion, particularly in critical sectors SCA with entering into and engaging in like the healthcare industry. In the past two separate bilateral conspiracies with year, the Division filed two indictments other healthcare companies to suppress involving healthcare labor markets— competition between them for the one charging an individual with his role services of senior-level employees. The in a wage-fixing conspiracy, and one case is pending in Dallas, Texas. charging a company for its role in an employee allocation (or “no-poach”) Lily Okamuro conspiracy. As explained in the Antitrust Trial Attorney, Financial Services, Photo credit: -goldy-/iStock /Getty Images PlusPlus Guidance for Human Resource Fintech, and Banking Section Professionals issued in 2016, Financial Services agreements among employers to refuse What was your background The Division also continued its to solicit or hire each other’s employees before joining the Antitrust prosecution of collusive conduct that (so-called “no-poach” agreements), or Division? undermined financial markets to fix rates or wages, eliminate worldwide. I have a B.A. in economics from competition in the same irredeemable U.C. Berkeley, a J.D. from way as agreements to allocate In September 2020, a former currency Georgetown University Law customers or fix product prices. These trader at a major multinational bank Center, and came to the Division conspiracies can harm workers in a was sentenced to serve eight months in from Ropes & Gray’s Antitrust variety of ways, including depriving prison and to pay a $150,000 fine, for Group. Prior to joining Ropes & them of competitive wages, mobility, his participation in a conspiracy to Gray, I worked in Dechert’s and the ability to bargain for better manipulate prices for emerging-market Antitrust Group. terms of employment or job currencies in the global foreign- opportunities. currency-exchange market. He was Why did you decide to join the convicted after a three-week trial in Division? In December 2020, a federal grand jury New York in late 2019. This conviction indicted the former owner of a Texas- I’ve wanted to work for the followed the guilty pleas of two former based in-home physical therapy Division ever since my second currency traders. Several major company for participating in a year of college. My financial institutions pleaded guilty as a conspiracy to fix prices by lowering the microeconomics professor would result of investigations into the financial rates paid to healthcare workers by his animate her lectures with war sector, and they were collectively company, and for obstructing the stories from her time in EAG, sentenced to pay over $2.5 billion in Federal Trade Commission’s earlier, including her work on U.S. v. criminal fines. separate investigation into his conduct. ATPCO, and I thought it sounded The indictment charges that he like the most exciting career. Fast

7 U.S. Department of Justice forward over ten years, a SLIP Antitrust Division Spring Update 2021 internship in TEA, and almost five years of building my resume through private practice, I finally United States v. Google they would need to achieve sufficient took my shot and applied to be a scale to challenge Google’s monopolies. Tech Fellow. On October 20, 2020, the Division filed About 80% of searches are covered by a civil lawsuit against Google alleging the combination of Google’s What do you like best about your that Google has used a range of exclusionary contracts and Google’s current work? anticompetitive tactics to maintain and own properties, leaving only a small Since joining the Division, I have extend monopolies in markets for fraction potentially available for worked on the Visa/Plaid team. search and search advertising, to the competitors. Google has described My favorite assignment was fact detriment of American consumers and some of its exclusionary agreements as witness development during the advertisers. “[i]nsurance polic[ies] that preserve our litigation. It was rewarding As the complaint alleges, for many search and assistant usage.” watching the team’s story come years Google has had a monopoly in together and strategizing with For search engines, some of the most general search, which includes search my partner about how different important distribution channels are the engines that can handle queries of all potential fintech witnesses might preset default positions on various types. Google’s overall market share in help tell that story. No witness search access points on computers and general search is now over 85%; its was perfect, so it was a constant mobile devices. Defaults are sticky and dialogue of pros, cons, and share is even higher on mobile devices, exert a strong influence over users’ at nearly 95%. Google monetizes its overall strategy. choice of search engine; the fact that search monopoly by selling ads on the end users can generally change results pages. The complaint default search engine does not resolve alleges that two search advertising the matter when, as one Google markets have been affected by Google’s executive bluntly put it, “most users conduct and that Google also has a just use what comes on the device.” monopoly in each of those markets. Google’s exclusionary agreements fall As in many markets, to become a into four main buckets. First, Google successful search engine a company uses an interlocking set of contracts must be able to effectively distribute its with Android device manufacturers and product to consumers. Google has used Ryan Sandrock carriers to “[o]wn the ecosystem” and its monopoly power to exclude rivals Trial Attorney, San Francisco ensure that it is the dominant search from the search distribution channels Office provider on Android devices. These What was your background before joining the Antitrust Division? I was born in Ohio but then moved to Chicago because the Division up AT&T (my dad worked for AT&T in Ohio and went to work for a “Baby Bell” in Chicago after divestiture). After college, I was a high school teacher and cross-country coach in Louisiana. Then, after law school, I practiced at Sidley Austin for a long time, in both Chicago and San Francisco. At

8 U.S. Department of Justice Sidley, I worked with Scott Antitrust Division Spring Update 2021 Lassar, who led the price-fixing case against ADM, and Sam Miller, who led the first Division contracts force Android manufacturers distribution on other browsers, case against Microsoft. I litigated to preinstall a bundle of Google apps including those used on desktops. many antitrust cases, mostly chosen by Google and secure premium Section 2, on the defense side. Following well-established antitrust placement of Google search access law, such as the D.C. Circuit’s United points. Second, Google enters into Why did you decide to join the States v. Microsoft (2001) decision, the agreements that require Android Division? Division alleges Google violated Section distributors to make Google the preset 2 of the Sherman Act by entering into I joined the Division because I default general search provider across these anticompetitive and exclusionary wanted to be part of the review all preinstalled search access points on of online platforms. There is a distribution agreements. an Android device. In return, Android renewed recognition of the distributors receive a share of search A bipartisan group of 14 states are co- importance of competition in the advertising revenue from those devices. plaintiffs with the Division. An digital economy. Third, Google has exclusionary additional 38 states and territories, led agreements with Apple. Apple’s mobile by Colorado and Nebraska, filed suit What do you like best about your devices account for 60% of mobile against Google on December 17, 2020, current work? device usage in the United States. incorporating the Division’s allegations I enjoy that everyone in the Google pays billions of dollars to Apple and adding certain additional claims. Division has a deep each year to be the exclusive preset The two complaints have been understanding of antitrust law. It default general search engine for consolidated for pretrial proceedings in is helpful to work with Apple’s primary search access points. federal court in Washington, D.C. economists and attorneys who Fourth, Google uses revenue-sharing Discovery is ongoing and trial is have thought more about core agreements to control search scheduled for September 2023. antitrust issues than probably anyone else. And it is fun to be  able to use Illinois Brick and Spotlight on Response to COVID-19 Brown Shoe as shorthand, At the outset of the COVID-19 letters to support pandemic health and knowing that your colleagues pandemic, the Division issued (jointly safety. These letters addressed don’t need further explanation. with the FTC) a statement that provides proposed competitor collaborations guidance for business collaboration critical to the response to the COVID-19 efforts and outlines an expedited pandemic and in most cases business review letter process for undertaken in collaboration with proposed conduct concerning COVID- federal organizing officials. Covered 19-related public health and safety topics included the development of efforts. The Agencies made clear that, common quality standards for collecting during this national emergency, some COVID-19 convalescent plasma, the collaborations between individuals or production of monoclonal antibody businesses could be procompetitive and therapies, a distribution program for Lara Trager necessary to respond to the exigencies personal protective equipment (PPE), Trial Attorney, Financial Services, of the pandemic. Under the expedited an information exchange for Fintech, and Banking Section business review process, the Agencies depopulating unmarketable hogs, and a aim to respond to and resolve all medication distribution program. What was your background COVID-19-related requests related to before joining the Antitrust • Letter to Baxalta, Emergent pandemic health and safety within Division? BioSolutions, Grifols Therapeutics, seven calendar days. and CSL Plasma I studied political theory, law, Since March 2020, the Division has • Letter to ecoHair Braiders economics, and public policy, and issued six expedited business review Association was privileged to spend many

9 U.S. Department of Justice years in private practice in New Antitrust Division Spring Update 2021 York City, at two different firms. My work focused on antitrust litigation and competition law • Letter to McKesson Corporation, The Division issued a second joint and afforded the opportunity to Cardinal Health, Owens & Minor, statement with the FTC in April 2020 work alongside and opposite Inc., Medline Industries, Inc., and reaffirming its commitment to some of the best. Sprinkled in Henry Schein, Inc. preserving competition in labor markets over the years were working at • Letter to AmerisourceBergen and curbing anticompetitive conduct by an early online platform during Corporation those who take advantage of the college, in the chambers of a • Letter to National Pork Producers pandemic to enter unlawful wage-fixing Federal Circuit Court Judge Council or no-poach agreements. In addition, during law school, with several • Letter to Eli Lilly and Company, the Division has also created the law and philosophy professors AbCellera Biologics, Amgen, Antitrust Issues and Your Small Business teaching and assisting with AstraZeneca, Genentech, and GSK public web page to provide guidance to research, and at a litigation small business owners on prohibited support services firm. My first Staff from across the Division worked conduct during the crisis. In terms of job, in high school, was selling with urgency and care to bring each of internal procedural changes for public shoes…for which it is fair to say I these reviews to a conclusion within the health and safety, the Division now am not cut out. seven-calendar-day target, while still permits the electronic filing of Hart- Why did you decide to join the conducting robust analyses and Scott-Rodino submissions and conducts Division? ensuring appropriate competition all meetings by phone or video safeguards were applied to these conference, absent extenuating It is a fascinating and exciting competitor collaborations. circumstances. time to be in antitrust. I am passionate about the intersection  of antitrust and technology in The Past Year in the Economic Analysis Group particular, and about the This last year has been one of and the gain to participants in antitrust importance of the Division’s continued growth and accomplishment crimes. This marks the first time in a mission and enforcement work, especially right now. When I saw for the Antitrust Division’s Economic decade—since the Division’s landmark an opening that offered the Analysis Group (EAG). We welcomed an conviction in United States v. AU opportunity to be involved, I impressive new cohort of Ph.D. Optronics, resulting in a $500 million jumped at it. economists, including Mark Chicu fine—that the Division is proceeding to (Northwestern ’13), Alex Gross (UVA trial under the Alternative Fine Statute. What do you like best about your ’20), Malika Krishna (NYU Stern ’16), EAG also made significant contributions current work? Sam Krumholz (UCSD ’20), and Hal Van to several of the Division’s higher Gieson (Yale ’92). The people are incredible. The profile civil matters, both litigated and caliber and commitment here at Economic analysis has been important settled. EAG’s analyses of market the Division—to doing what is to the Division’s criminal investigations, definition and nascent competition in right and best for the American including its investigation into antitrust two-sided transactions platforms for economy and consumer, under conspiracies in the generic online debit were central to the the facts and law—are inspiring. pharmaceutical industry. EAG staff has Division’s challenge of Visa’s proposed There is an energy and evaluated bidding and pricing behavior acquisition of Plaid, which was dedication to public service here to assist prosecutors in their abandoned before trial. The robust which it is wonderful to be a part investigations and calculated volume of merger settlements achieved by the of. commerce to assist prosecutors in Division in the HPHC/Tufts health determining appropriate corporate insurance merger and the Liberty Latin criminal fines and penalties. In the America/AT&T fiberoptic network generics investigation, EAG staff also merger reflect the empirical evaluations worked to quantify the loss to victims of market definition and competitive

10 U.S. Department of Justice Antitrust Division Spring Update 2021

effects performed by Division Division. These included the drafting by the academic literature and economists. of the 2020 Vertical Merger experience from applications, to Guidelines, a process that involved provide guidance and illustrative EAG economists were also vital identifying the primary elements of examples to the antitrust and members of the groups tasked with vertical merger analyses, as informed business communities. other first-order priorities for the

Civil Program Update

Recent Merger Settlements

Over the past year the Division Hampshire filed a settlement to across a number of states and that entered into more than ten merger resolve the competitive harm alleged , as originally proposed, settlements involving a wide range of in the complaint. The settlement would eliminate head-to-head industries and competitive issues. required that Harvard Pilgrim and competition between Waste Generally, the remedies involved Health Plan Holdings divest Tufts Management and Advanced Disposal structural relief, and a number of Health Freedom Plan Inc.—Health and threaten the lower prices and matters involved up-front buyers, Plan Holdings’ commercial health better services that customers had local markets, and cooperation with insurance business in New realized from that competition. The state enforcers. Among the Hampshire—in order to proceed with Division and the states filed a settlements are (1) Harvard Pilgrim their merger. The Division approved settlement that required the sale of and Health Plan UnitedHealth Group Inc. as the up- assets covering landfills, transfer Holdings; (2) Waste Management, front buyer of Tufts Freedom. The stations, hauling locations, and waste Inc. and Advanced Disposal Services, settlement will preserve competition collection routes. The Division Inc.; (3) Liberty Latin America and for the sale of commercial health approved GFL Environmental Inc. as AT&T; and (4) Communications insurance to private employers in the up-front buyer of all of the Power Industries LLC and General New Hampshire with fewer than 100 divestiture assets. This settlement Dynamics SATCOM Technologies Inc. employees. This matter was handled will preserve competition for by the Healthcare and Consumer customers of these services in over Products Section. 50 local markets. This matter was handled by the Defense, Industrials, Photo credit: everydayplus/iStock/Getty Images Plus and Aerospace Section. Harvard Pilgrim Health Photo credit: kipgodi/iStock/Getty Images Plus Care/Health Plan Holdings Waste Management/Advanced In December 2020, the Antitrust Photo credit: kynny/iStock/Getty Images Plus Disposal Services Division and the Attorney General of Liberty Latin America/AT&T New Hampshire filed a complaint In October 2020, the Antitrust challenging the proposed merger of Division and the Attorneys General of In October 2020, the Antitrust Harvard Pilgrim Health Care and Florida, Illinois, Minnesota, Division filed a complaint challenging Health Plan Holdings (formerly Pennsylvania, and Wisconsin filed a the acquisition of AT&T Inc.’s known as Tufts Health Plan). The complaint challenging the proposed telecommunications operations in complaint alleged that the merger, as merger of Waste Management, Inc. Puerto Rico and the U.S. Virgin originally structured, would have led and Advanced Disposal Services, Inc. Islands by Liberty Latin America Ltd. to higher prices, poorer quality, and The complaint alleged that the The Division alleged that Liberty and reduced choice for many consumers merger involved two of only a few AT&T were two of the three largest throughout the state of New significant providers of certain types wireline telecommunications Hampshire. The Division and New of waste services in local markets providers in Puerto Rico and that the

11 U.S. Department of Justice Antitrust Division Spring Update 2021

acquisition, as originally proposed, in the provision of these services. customers. Consequently, the would have eliminated competition This matter was handled by the acquisition, as originally proposed, between the parties to provide fiber- Media, Entertainment, and would have resulted in a monopoly based connectivity and Communications Section. for these products and would have telecommunications services to eliminated the higher quality, lower enterprise customers in Puerto Rico, prices, and shorter delivery times likely resulting in increased prices Photo credit: Studio510/iStock/Getty Images Plus that resulted from competition and lower-quality services for these between the parties. To address the customers. To address these CPI/GD SATCOM Division’s antitrust concerns, the competitive concerns, Liberty and In May 2020, the Antitrust Division parties agreed to divest ASC Signal, in AT&T agreed to divest certain fiber- filed a complaint challenging the order to preserve competition for based telecommunications assets acquisition of General Dynamics critical equipment that enables and customer accounts. The Division SATCOM Technologies Inc. (“GD important communication links for approved WorldNet SATCOM”) by Communications and the United States military and Telecommunications, Inc. as the up- Power Industries LLC (“CPI”). The commercial customers in remote front buyer. The settlement includes Division alleged that GD SATCOM areas. The settlement, which was an option for a monitoring trustee. and CPI were the only two suppliers entered by the court on May 28, This settlement, which was entered of certain satellite antenna 2020, did not require an up-front by the court on February 3, 2021, will equipment to the Department of buyer. This matter was handled by ensure that customers in Puerto Rico Defense and to commercial the Defense, Industrials, and continue to benefit from competition Aerospace Section. 

Protecting Nascent Competition: Visa and Plaid Fair Play: CID Compliance and Abandon Anticompetitive Merger Avoiding Privilege Gamesmanship On January 13, 2020, Visa announced plans to acquire Plaid, a Continue to Be Enforcement Priorities successful financial technology (fintech) startup, for $5.3 billion. In October 2020, the Division filed a civil action against Bain & Company to enforce its Consumers use Visa debit cards to pay for goods and services compliance with a civil investigative demand directly from their bank account, including hundreds of billions of (CID) issued to Bain in connection with Visa’s dollars in online purchases each year. Visa is accepted by the proposed acquisition of Plaid. According to majority of U.S. merchants and earns billions of dollars each year the complaint, Bain withheld thousands of processing these online debit payments. Plaid is a financial data relevant documents relating to consulting aggregator whose technology enables consumers to provide their work it performed for Visa. Bain claimed the banking information to fintech applications like Acorns, Betterment, consulting project was subject to a blanket and Robinhood. privilege because it was conducted at the The Division sued to block the merger in November 2020 in the direction of Visa’s outside counsel. The Northern District of California, challenging the acquisition as a Division alleged, however, that the requested violation of both Section 7 of the Clayton Act and Section 2 of the

Sherman Act. According to the complaint, Plaid planned to leverage its existing technology—including connections to 200 million consumer bank accounts in the U.S.—to launch an online debit Photo credit: Artem Cherednik/iStock/Getty Images Plus product that would compete with Visa at a lower cost to merchants.

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The complaint alleged that Visa is a monopolist in online debit, materials were simply business strategy extracting billions of dollars in swipe fees from merchants and documents not entitled to privilege. consumers each year, and that Visa sought to buy Plaid as an “insurance policy” to neutralize a “threat to our important US debit This enforcement action exemplifies the business.” One Visa executive drew an island “volcano” to illustrate Division’s ongoing efforts to enforce CID Plaid’s disruptive potential, whose current capabilities are just “the compliance and ensure companies—both tip showing above the water,” warning that “[w]hat lies beneath, parties and third parties—do not though, is a massive opportunity—one that threatens Visa.” inappropriately withhold documents using unfounded privilege claims. In 2018, the According to the complaint, Visa’s CEO recognized that the Plaid Division updated its model timing acquisition did “not hunt on financial grounds,” but justified the agreement, including provisions asking extraordinary purchase price as a “strategic, not financial” move merging parties to precisely designate because “[o]ur US debit business i[s] critical and we must always do documents as privileged in order to avoid what it takes to protect this business.” longer review. And just last year the Division On January 12, 2021, Visa and Plaid announced that the companies rejected a certification of second request had terminated their merger agreement. compliance in a significant merger investigation because of the parties’ The complaint in Visa/Plaid demonstrates the Division’s inadequate privilege logs. commitment to blocking anticompetitive acquisitions of nascent competitors by dominant firms. In 2019, the Division similarly sued The Division respects the attorney-client to block Sabre’s acquisition of Farelogix, alleging that the privilege and the work product doctrine and transaction would have allowed Sabre, the largest booking services the need for a careful review process to provider in the U.S., to eliminate a disruptive competitor. The protect these materials. But privilege Division remains vigilant in ensuring dominant firms do not gamesmanship—and overuse of privilege to unlawfully protect their market power to the detriment of shield relevant documents from consumers. production—will not be tolerated. The recent enforcement action against Bain highlights the Division’s careful scrutiny of privilege claims and its commitment to ensuring companies honor their obligations under the CID statute, 15 U.S.C. § 1311 et seq. (1994). Photo credit: Prostock-Studio/iStock/Getty Images Plus

 Resolution of the Antitrust Division’s Challenge to Geisinger Health’s Partial Acquisition of Evangelical Community Hospital

In March 2021, the Antitrust Division competitors for inpatient general coordination, harming patients in announced a settlement resolving acute-care hospital services for central Pennsylvania. civil antitrust litigation filed in August patients in a six-county area in Under the hospitals’ original 2020 challenging an agreement central Pennsylvania. The partial- agreement, Geisinger was to obtain a between Geisinger Health and acquisition agreement created 30% ownership interest in Evangelical Community Hospital that significant entanglements between Evangelical in exchange for providing amounted to an anticompetitive the hospitals, reducing their $100 million to Evangelical for use on partial acquisition of Evangelical by incentives to compete against each projects to be approved by Geisinger. Geisinger. The Division alleged that other and increasing the likelihood of Geisinger and Evangelical are close

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The agreement also gave Geisinger certain rights with respect to future transactions and joint ventures. Absent the Division’s challenge, the agreement would have set Geisinger Image credit: Arkadiusz Warguła/iStock/Getty Images Plus up as a critical source of funding for Evangelical for the foreseeable competition in central Pennsylvania. are also each required to implement future, provided opportunities for The terms of the proposed final an antitrust compliance program. judgment are intended to prevent Geisinger to influence Evangelical’s The settlement addresses the harm Geisinger from exercising any form of strategic decisions, and would have from the partial acquisition while control or influence over Evangelical made it difficult for Evangelical to allowing the procompetitive aspects and to maintain the two hospitals’ partner with other healthcare of the hospitals’ agreement to move incentives to compete with each entities. The Division alleged that the forward. For this reason, the other on both quality and price. In provisions of the partial-acquisition settlement permits Evangelical to addition to capping Geisinger’s agreement functioned together to obtain new information technology ownership interest in Evangelical at a substantially lessen competition and systems from Geisinger to allow 7.5% passive interest, the settlement unreasonably restrain trade in the Evangelical to upgrade its electronic restricts Geisinger from increasing its market for inpatient hospital services health records system and improve ownership interest in Evangelical, in central Pennsylvania. the delivery of care to patients in making any loan or providing any line central Pennsylvania. In addition, the The settlement caps Geisinger’s of credit to Evangelical, and exerting funds associated with Geisinger’s investment and otherwise limits any control over Evangelical’s passive investment can be used for entanglements between the two expenditure of funds. Both hospitals hospitals to preserve hospital specific projects that will benefit patients and the community.

Criminal Program Update

Generic Drugs Investigation Targets Anticompetitive Schemes

The Division remains committed to generic pharmaceutical companies deferred prosecution agreements rooting out illegal conduct that and four senior executives for (DPAs) to resolve the charges, under corrupts critical healthcare markets. conspiring to fix prices, rig bids, and which they collectively agreed to pay That work is more important now allocate customers for essential over $426 million in criminal than ever before. generic drugs relied on by millions of penalties for collusion that affected American consumers, including the over $1 billion of generic drug sales. In recent years, the Division has elderly and vulnerable, to treat a Most recently, in July 2020, Taro uncovered price-fixing, bid-rigging, range of diseases and conditions. Of Pharmaceuticals U.S.A., Inc. was and customer-allocation schemes in the four executives charged, three charged for participating in two one of the most important markets have pleaded guilty. Of the seven conspiracies to fix prices, rig bids, for the health and wallets of companies, five have admitted to the and allocate customers that American consumers: the generic charged conduct and entered into impacted over $500 million in sales drug industry. Indeed, nearly 90% of all prescriptions in the United States are filled with generic drugs. To date, the investigation has resulted in charges against seven Photo credit: Oleh Kucheriavyi/iStock/Getty Images Plus

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of generic drugs used to prevent and The criminal cases are being Office for the Eastern District of control seizures and treat bipolar prosecuted by attorneys in the Pennsylvania. disorder, pain and arthritis, and Division’s Washington Criminal I and The companies and executives that various skin conditions. The company II sections and the Chicago Section, have resolved the charges have entered into a DPA to resolve the with assistance of the USPS Office of agreed to provide ongoing charges under which it agreed to pay Inspector General, the Federal cooperation, including against two a $205.7 million criminal penalty— Bureau of Investigation’s Washington companies—Teva and Glenmark— the highest ever for a domestic Field Office, and the U.S. Attorney’s and one executive currently awaiting cartel. trial.  PCSF Expansion and Early Success

The Procurement Collusion Strike Force (PCSF) is a district-based, virtual strike force, where dedicated Division attorneys work with Assistant U.S. Attorneys and agents from federal, state, and local entities with two complementary goals: conducting outreach to increase awareness and deterrence of the Department of Homeland from domestic investigations into antitrust and other criminal Security OIG. To date, the Strike conduct primarily within a single violations in government contracts, Force is active in almost a quarter of district to international investigations grants, and programs; and leveraging U.S. judicial districts and coordinates into conduct affecting U.S. the combined talents and resources with 486 members from 48 agencies government procurement in multiple of the enforcement community to and offices. states, nationwide, and overseas. One investigation involving eleven detect, investigate, and prosecute The PCSF recognizes that the first offices and agencies reflects the violations. Since its launch in step in opening investigations and November 2019, the initial PCSF’s 13 PCSF’s incredible partnerships. bringing prosecutions is awareness. district teams, consisting of Division The PCSF has sponsored trainings on District teams are not the only way attorneys and agents from five recognizing antitrust crimes to over Division prosecutors get involved in partner agencies immediately started 10,000 agents, investigators, the PCSF—many instead tackle discovering like-minded agents, analysts, auditors, attorneys, and leveraging bid data and partnering investigators, prosecutors, and procurement officers from over 500 with agencies to implement collusion analysts in their areas of offices and agencies. As PCSF analytics through the PCSF Data responsibility and training scores of attorneys and agents followed up on Analytics Project. The Data Analytics individuals in recognizing antitrust the resulting potential collusion tips, Project began the conversation red flags. they uncovered conduct to about the use of data analytics to Its first year generated waves of contribute to the nearly three dozen combat bid rigging with four interest, training requests, and leads, PCSF-related investigations opened webinars in 2020. More than 1,000 spurring the PCSF to expand last to date. data scientists, analysts, and auditors November. It welcomed nine U.S. attended these virtual workshops, PCSF investigations span the range of Attorney’s Offices and two new and the PCSF plans more in the procurement collusion and fraud national partners: the Air Force coming year. Afterwards, Data matters, from defense and national Office of Special Investigations and Analytics Project attorneys engaged security to public works projects, and with dozens of agency analytics

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shops in order to encourage them to The Data Analytics Project is not the Division attorneys in the criminal and build analytical tools to detect PCSF’s only new endeavor. PCSF international sections are working on collusion; the attorneys offered presentations to international groups this project. training in suspicious bid patterns and Division investigations with As the PCSF begins its second year and provided connections to other foreign competition authorities with expanded ranks, it is gearing up analytics teams. Other recent efforts paved the way for the PCSF to launch to bring investigations to the include interfacing with procurement PCSF: Global, an effort to build recommendation and disposition platforms as sources of data and connections with enforcement stage, to build out the PCSF data advocating for collection and counterparts and tackle potential analytics program, and to expand its retention of bid data across collusion in bids for the staggering reach with PCSF: Global. government. amount of U.S. funds spent abroad.

 Investigation into Procurement Irregularities at the Department of Energy Strategic Petroleum Reserve Results in Guilty Plea and Indictment

In July 2020 and February 2021, a emergency. It is managed and Cajan received over 50 subcontracts company and an individual were operated by a prime contractor, worth approximately $15 million. The charged with a conspiracy to defraud which obtains equipment and indictment alleges that the the United States and violate the maintenance services for the Reserve defendant had a personal and Procurement Integrity Act (41 U.S.C. through a procurement process that business relationship with Cajan’s §§ 2102 and 2105), in violation of 18 seeks competitive bids from owner (now deceased), and that he U.S.C. § 371. According to the subcontractors. The charged received financial benefits from charging documents, an employee of individual served as a subcontract Cajan. The indictment also charges the Department of Energy’s prime manager’s technical representative, that he made false statements to contractor conspired with a and his involvement in the federal agents by asserting that he subcontractor, Cajan Welding & procurement process included had not provided any nonpublic Rentals Ltd., to impair the preparing nonpublic pricing and cost pricing information to Cajan. government’s procurement process estimates for the government. The The company, Cajan Welding & by providing nonpublic pricing and alleged conspiracy began at least as Rentals, Ltd., pleaded guilty, and in cost information to Cajan in advance early as February 2002 and December 2020 was sentenced to a of its bids, in order to give it a continued at least as late as October criminal fine of $400,000. The competitive advantage in obtaining 2016, during which time the individual was indicted in February subcontracts to provide equipment defendant provided these nonpublic 2021, and trial is currently set to and services to the Strategic pricing and cost estimates to Cajan in begin on May 24, 2021. The cases are Petroleum Reserve. advance of its bids, sometimes by the result of an investigation by the email. Cajan used this information to The Strategic Petroleum Reserve is Department of Energy Office of prepare its bids, and during the the nation’s stockpile of oil that can Inspector General, in partnership course of the conspiracy period, be drawn upon during times of with the Antitrust Division’s Washington Criminal II Section and the U.S. Attorney’s Office in the Eastern District of Louisiana.

Photo credit: insagostudio/iStock/Getty Images Plus

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North Carolina Drainage Investigation Leads to Grand Jury Indictment for Bid Rigging and Fraud

In October 2020, engineering firm Contech Engineered Solutions LLC and its former executive were indicted on charges of conspiring to

rig bids, conspiring to commit mail Photo credit: SUYANG CHANG/iStock/Getty Images Plus fraud, and committing mail and wire inflated Contech’s bids to be higher tried in the Eastern District of North fraud in connection with a nearly than its co-conspirator’s bid, while Carolina as a horizontal bid-rigging decade-long scheme affecting falsely certifying that the bids were case under the per se rule, as alleged aluminum structure projects for the submitted free of collusion. He in the indictment. A trial date has not North Carolina Department of allegedly manipulated Contech bids yet been set. Transportation (NCDOT). by increasing the price by a certain This indictment is part of a criminal percentage above its competitor’s, in Throughout the alleged conspiracy, investigation into the aluminum order to give the appearance of Contech, a manufacturer of structures industry, conducted by the submitting a good faith, competitive aluminum pipe and fittings and other Division’s Washington Criminal I products, and its co-conspirator, a bid to NCDOT. Upon submitting the Section, with the assistance of the dealer of Contech’s products, bid on intentionally inflated bid prices and USPS Office of Inspector General, the numerous NCDOT aluminum subsequently losing the projects to U.S. Department of Transportation its co-conspirator, Contech then structure projects. Aluminum Office of Inspector General, and the supplied all of the aluminum pieces structures control the flow of water U.S. Attorney’s Office for the Eastern for those projects. underneath and around roads, District of North Carolina. bridges, and overpasses, providing The indictment alleges that the This prosecution emphasizes the water drainage, erosion control, and conspiracy primarily involved Division’s commitment to sewage management. During the Contech soliciting bid prices over the time period alleged in the combatting collusion in government phone. The parties also occasionally indictment, NCDOT increasingly used contracting, which raises the prices met in person, or exchanged emails aluminum structures, as opposed to and diminishes the quality of the and text messages, to share pricing goods and services paid for by U.S. steel or concrete, for its drainage information used to create cover taxpayers. The Division, whether projects. bids. According to the indictment, working with longstanding law the co-conspirators used the mails According to the indictment, the enforcement partners or as part of and wires in furtherance of the former executive obtained—or the Procurement Collusion Strike scheme. directed another to obtain—bid Force, including the use of data prices from Contech’s competitor on On March 15, 2021, the court denied analytics, will continue its efforts to the aluminum structure projects in Contech’s motion to apply the rule of detect, investigate, and prosecute advance, and then intentionally reason to the case. The case will be these crimes.

International Program Update

Continued Commitment to International Enforcement

The year 2020 marked the 150th Antitrust Division continued its long the globe to advance competition anniversary of the Department of tradition of working closely with enforcement and policy. Justice. During this hallmark year, the competition agencies from around

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In response to the COVID-19 agreement—a Memorandum of Division extradited two fugitives pandemic, the Division’s Understanding (MOU) with the from Europe during FY 2020. The first International Section fully Korean Prosecution Service. The defendant was a former air cargo transitioned to a virtual workspace. MOU is a testament to the executive who was indicted for her This shift enabled the Division to deepening cooperative relationship involvement in a long-running continue its important international between the Division and the Korean worldwide conspiracy to fix prices of work while supporting the health and Prosecution Service on cartel air cargo. She was extradited from best interests of the global investigations and policy issues. The Italy and pled guilty in January 2020. community. To facilitate the change, MOU also encourages the agencies The second defendant was a former the Division leveraged its existing to host joint training programs and automotive parts executive who was bilateral relationships and ties to to share information on policy and indicted for his role in an multilateral organizations, such as enforcement developments. international market allocation and the OECD and ICN, to sustain bid-rigging conspiracy involving the communication and cooperation Bilateral Cooperation sale of instrument panel clusters to despite these challenging times. In FY 2020, Antitrust Division case several automobile producers. He teams cooperated with 15 was extradited from Germany and Cooperation Agreements competition agencies on 26 merger pled guilty in March 2020. One of the Antitrust Division’s most and civil nonmerger matters. significant international On these matters and numerous Similarly, the Division cooperated others, international cooperation achievements of the past year is the with numerous competition agencies signing of the Multilateral Mutual facilitated effective investigations in its cross-border cartel and enforcement. For example, the Assistance and Cooperation investigations. Many of these Framework for Competition Division worked closely with several matters involved coordination with competition agencies to Authorities (MMAC) in September multiple competition agencies. 2020. The MMAC, signed with accommodate parties’ requests to competition agencies in Australia, For example, in reviewing the proceed with depositions remotely, Canada, New Zealand, and the proposed merger of McGraw-Hill and sometimes from foreign countries, in United Kingdom, builds on these Cengage, the Division worked closely order to avoid travel during the competition agencies’ prior with a number of competition pandemic. Our international multilateral agreements and robust agencies, including the Australian counterparts helped the Division record of collaboration while Consumer and Competition understand and comply with simultaneously creating a new model Commission, the New Zealand potential international legal cooperation agreement. The model Commerce Commission, and the obligations associated with taking agreement is expected to serve as a U.K.’s Competition and Markets depositions remotely. This invaluable template for subsequent agreements Authority. In another example, the cooperation allowed the Division to among signatories that would Division cooperated closely with the advance its investigations while facilitate future cooperation in both Israel Competition Authority and the allowing witnesses to remain safely criminal and civil matters. Though U.K.’s Competition and Markets in or near their homes. Authority in connection with the the signatories could not gather in Another Division initiative was to proposed merger of Taboola and person for the signing ceremony, the share its enforcement experience Outbrain. MMAC’s virtual signing further with foreign jurisdictions, providing demonstrates the Division’s The Division also underscored its information on established best adaptability and steadfast commitment to bringing fugitives to practices in support of sister agencies commitment to its partners in cross- justice. Working closely with the for the benefit of appellate courts border competition enforcement. Department’s Criminal Division Office reviewing their decisions. Under this In November 2020, the Division also of International Affairs and their “international amicus” effort, the entered into another important international counterparts, the Division provided support to two

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agencies relating to cartel Competition Committee included implement the Framework on enforcement, and held discussions conglomerate effects of mergers, Competition Agency Procedures with other agencies. killer acquisitions, the role of (CAP). Since its launch in May 2019, competition policy in promoting over 70 competition agencies have Multilateral Cooperation economic recovery, and committed to strengthening The Antitrust Division also worked criminalization of cartels and bid- procedural fairness in competition closely with international colleagues rigging markets. The U.S. submissions enforcement via the CAP. on these topics, as well as the through multilateral organizations, The Division and the FTC also co- submissions by other OECD such as the Organization for hosted the first virtual ICN Annual members, are available on the OECD Economic Co-operation and Conference in September 2020. The Competition Committee’s website. Development (OECD) and conference examined a range of International Competition Network In the ICN, the Division led efforts to competition enforcement and policy (ICN). develop “Guidance on Enhancing issues, including those involving the Among its myriad undertakings, the Cross-Border Leniency Cooperation.” digital economy. Over 2500 Division, along with the FTC, made Published in July 2020, the guidance delegates from around the world substantial contributions to the addresses key areas of coordination participated, including agency preparation of forthcoming OECD between competition agencies and leadership and staff, as well as recommendations on transparency provides practical tips for the day-to- competition experts from and procedural fairness and on day issues confronting agency case international organizations and legal, competitive neutrality. A delegation teams. The guidance aims to make business, and academic from the Division also participated in international enforcement efforts communities. virtual meetings of the OECD’s more effective and reduce Technical Assistance Competition Committee in June 2020 disincentives for prospective leniency and December 2020. Topics applicants. The Division also As a part of its virtual transition, the discussed this year in the continued to lead efforts to Antitrust Division began providing technical assistance to competition agencies entirely through digital communications platforms. Administering these programs virtually made them more accessible, leading to a greater number of events with higher attendance rates from both Division staff and participating jurisdictions.

In FY 2020, the Division participated in 24 technical assistance programs for numerous jurisdictions, including Barbados, the Dominican Republic, Georgia, Lithuania, Kenya, Kuwait, Malaysia, Mexico, Moldova, Morocco, New Zealand, Nigeria, Peru, the Philippines, Spain, and Ukraine. Of these programs, nine Richard Powers participates in the ICN 2020 virtual conference. were in-person and 15 were virtual.

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Competition Advocacy

New Legislation Supports More Effective Antitrust Enforcement

Over the past year, the Antitrust Division supported a number of legislative changes to strengthen the antitrust laws. A major legislative priority was the reauthorization of Photo credit: tifonimages/iStock/Getty Images Plus the Antitrust Criminal Penalty individuals who report criminal insurance” from the federal antitrust Enhancement and Reform Act antitrust violations, was signed into laws. The Competitive Health (ACPERA). Congress enacted ACPERA law. Together, the passage of the Insurance Reform Act amended the in 2004 to incentivize corporations to Criminal Antitrust Anti-Retaliation McCarran-Ferguson Act to clarify self-report and cooperate pursuant Act and ACPERA will support the that, except for certain activities that to the Division’s Corporate Leniency Antitrust Division’s ability to detect, improve health insurance services for Policy. On October 1, 2020, an investigate, and prosecute criminal consumers, the conduct of health extension of ACPERA that repealed antitrust violations. insurers remains subject to the its sunset provision became law, antitrust laws. ensuring that ACPERA will continue Another recent legislative change to support the Antitrust Division’s focused on the scope of exemptions In recognition of the Antitrust Leniency Program. to the antitrust laws. On January 13, Division’s critical role at this time, Congress also sought to bolster the 2021, the Competitive Health Congress is in the process of drafting Insurance Reform Act of 2020, which Antitrust Division’s criminal program new legislation to make the Division limited the antitrust exemption by passing longstanding legislation better funded and more effective. available to health insurance The Division welcomes congressional that extended protections to companies under the McCarran- support for its mission. It intends to whistleblowers in criminal antitrust Ferguson Act, was signed into law. engage fully with the process and cases. On December 23, 2020, the The McCarran-Ferguson Act provide Congress with the Criminal Antitrust Anti-Retaliation exempted certain conduct that information that it needs. Act, which prohibited employers from retaliating against certain constituted the “business of

Photo credit: Sean Pavone/iStock/Getty Images Plus

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