Letter from Acting AAG Richard Powers - Department of Justice
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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
Richard Powers treatment center. And most recently,
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
I
make sure that all employees are
and was sentenced to pay a $107
am pleased to present the Antitrust fully supported and empowered to
million criminal fine. Moreover, since
Division’s Spring Newsletter, which do their important work and that we
the pandemic began, criminal teams
illustrates the outstanding work by remain a process driven organization.
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 money
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 the fight 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 B.A. in classical studies and
re-imagining diversity programs for the
several other accomplishments from its worked on a(n unsuccessful) NYC
virtual telework environment, the
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 Why did you decide to join the
This year, the Committee hosted the
Inclusion Speaker Series” session with Division?
Antitrust Division’s Seventh Annual
Dr. Kay Redfield Jamison, Co-Director of
Diversity Celebration featuring remarks I was drawn by the Division’s
the Mood Disorders Center and
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 industries. Before that, I
The Women’s Subcommittee, in
questions about public service, career completed my Ph.D. in
collaboration with the Antitrust
development, transitioning from college economics at Northwestern
Division’s Career Development Working
to work, and simply being successful in University, and specialized in
Group and Executive Office, launched
a dynamic workplace where diversity is industrial organization, thinking
stand-alone lactation and wellness
celebrated and supported. The about the same kinds of issues
rooms in Antitrust Division offices to be
Outreach Subcommittee also hosted a that confront us every day here
used by employees in need of privacy.
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 What do you like best about your
retention of veterans and reservists,
a very successful Paralegal Flash current work?
and increasing awareness of their
Mentoring Program, which provided
valuable contributions to the Division’s Staff—regardless of rank—are
critical connections and career
mission. The Committee has ambitious given a lot of responsibility and
counseling for Division paralegals.
plans for the coming year and intends are put in a position to make
Relaunched in 2020 as a virtual event, it
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 the Office 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 Alex Gross
reapportioned commodities within the
responsibility for judgment Economist
civil litigating sections. The Division also
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 What do you like best about your
the civil enforcement program. OPS
full-time staff includes two career current work?
coordinates and implements policies
attorneys, Jeffrey Negrette and
and procedures affecting the Division’s I like that I’m able to apply many
Kathleen Kiernan, who have experience
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 What was your background
Mazumdar was named Special Counsel
enforcement program. before joining the Antitrust
for Agriculture; James Attridge was
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
consulting, I wanted to join EAG
Spotlight on Litigation 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
Food redoubled its efforts to prosecute illegal
conduct that corrupts vital healthcare
The Division is committed to ensuring Alisa Mastro
markets.
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 Before joining the Division, I
In the packaged seafood industry, the
conspiracies to fix prices, rig bids, and worked in private practice in
former CEO and president of Bumble
allocate customers for generic drugs. Washington, D.C. where I got
Bee Foods, LLC was convicted following
The Teva-Glenmark indictment follows exposure to both transactional
a four-week trial in San Francisco. In
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
(SCA) and its related entity for complex issues. I also love diving
Photo credit: NanoStockk/iStock/Getty Images Plus
participating in conspiracies not to into factual investigation to
Labor Market understand different products
solicit senior-level employees from its
The Division remains focused on and markets.
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 I have a B.A. in economics from
worldwide.
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 I’ve wanted to work for the
indicted the former owner of a Texas-
followed the guilty pleas of two former Division ever since my second
based in-home physical therapy
currency traders. Several major year of college. My
company for participating in a
financial institutions pleaded guilty as a microeconomics professor would
conspiracy to fix prices by lowering the
result of investigations into the financial animate her lectures with war
rates paid to healthcare workers by his
sector, and they were collectively stories from her time in EAG,
company, and for obstructing the
sentenced to pay over $2.5 billion in including her work on U.S. v.
Federal Trade Commission’s earlier,
criminal fines. ATPCO, and I thought it sounded
separate investigation into his conduct.
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 What do you like best about your
the combination of Google’s
that Google has used a range of current work?
exclusionary contracts and Google’s
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
share is even higher on mobile devices, dialogue of pros, cons, and
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 the
search 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 Ryan Sandrock
product to consumers. Google has used
carriers to “[o]wn the ecosystem” and Trial Attorney, San Francisco
its monopoly power to exclude rivals
ensure that it is the dominant search Office
from the search distribution channels
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 broke 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 Why did you decide to join the
points. Second, Google enters into
States v. Microsoft (2001) decision, the Division?
agreements that require Android
Division alleges Google violated Section
distributors to make Google the preset I joined the Division because I
2 of the Sherman Act by entering into
default general search provider across wanted to be part of the review
these anticompetitive and exclusionary
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. I studied political theory, law,
and CSL Plasma
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-
conducting robust analyses and Why did you decide to join the
Scott-Rodino submissions and conducts
ensuring appropriate competition Division?
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), current work?
EAG also made significant contributions
Sam Krumholz (UCSD ’20), and Hal Van
to several of the Division’s higher The people are incredible. The
Gieson (Yale ’92).
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
10U.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 the merger, 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
Health Care 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
11U.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.
12U.S. Department of Justice
Antitrust Division Spring Update 2021
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
13U.S. Department of Justice
Antitrust Division Spring Update 2021
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.
Geisinger to influence Evangelical’s judgment are intended to prevent
The settlement addresses the harm
strategic decisions, and would have Geisinger from exercising any form of
from the partial acquisition while
made it difficult for Evangelical to control or influence over Evangelical
allowing the procompetitive aspects
partner with other healthcare and to maintain the two hospitals’
of the hospitals’ agreement to move
entities. The Division alleged that the incentives to compete with each
forward. For this reason, the
provisions of the partial-acquisition other on both quality and price. In
settlement permits Evangelical to
agreement functioned together to addition to capping Geisinger’s
obtain new information technology
substantially lessen competition and ownership interest in Evangelical at a
systems from Geisinger to allow
unreasonably restrain trade in the 7.5% passive interest, the settlement
Evangelical to upgrade its electronic
market for inpatient hospital services restricts Geisinger from increasing its
health records system and improve
in central Pennsylvania. ownership interest in Evangelical,
the delivery of care to patients in
making any loan or providing any line
The settlement caps Geisinger’s central Pennsylvania. In addition, the
of credit to Evangelical, and exerting
investment and otherwise limits funds associated with Geisinger’s
any control over Evangelical’s
entanglements between the two passive investment can be used for
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
14U.S. Department of Justice
Antitrust Division Spring Update 2021
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.
detect, investigate, and prosecute One investigation involving eleven
The PCSF recognizes that the first
violations. Since its launch in offices and agencies reflects the
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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