The DOJ’s Antitrust Division relies on legal filings to influence competition law, even when it lacks the time and resources to join private litigation as a party.
By deploying declarations of interest in private matters – such as challenges to non-poaching pacts between employers – Division Chief Jonathan Kanter focuses on clarifying the law while laying the groundwork for potential future major cases, according to former DOJ staffers and antitrust attorneys.
“Under Trump and even more so under Biden, there is more of an urge to plead, even though they may lose,” said Daniel Crane, a professor at the University of Michigan Law School. “Expressions of interest are a warm-up for that.”
Kanter’s predecessor, former antitrust division chief Makan Delrahim, stepped up declarations of interest, in part in response to pressure from lawmakers to crack down on anticompetitive behavior. This trend continued under the Biden administration.
The agency under Kanter is using every tool available to push its agenda forward, said Kathy O’Neill, a former senior division manager who left in May. In a context of historic staff decline, the use of declarations illustrates the division’s pressing need to allocate resources between investigations, litigation and briefs.
“Antitrust agencies have been starved of resources for more than a decade,” O’Neill said. “So there’s this renewed interest and recognition that an Expression of Interest can be a useful vehicle for advancing their antitrust agendas.”
Since 2018, the division has filed 40 Expressions of Interest and Responses, virtually all with U.S. District Courts. Prior to that, he had only filed two: one in 2010 and one in 2009, according to a review of divisional records.
Most statements have been filed under Delrahim, but Kanter appears to be keeping pace, filing eight statements in the nine months since his confirmation, including six since late April.
The filings also illustrate the division’s evolving legal priorities. Nearly a third of Delrahim’s filings focused on the intersection of intellectual property and antitrust law, though the department did tackle some non-poaching cases. The division under Delrahim also took on private litigation that relied heavily on the interpretation of antitrust exemptions.
Kanter, meanwhile, has focused on hard work, with half of the filings so far under his watch devoted to non-poaching and non-compete agreement litigation. Two others deal with antitrust exemptions.
“Nothing But Good”
Expressions of interest can only be filed by the government. They also provide the ability to intervene quickly in cases, often at the district court level. They differ from amicus briefs, which are open to all parties and tend to be most successful at the appellate level or above.
“People might look at it and say ‘My God, why is the division doing this instead of carrying business? said Andrew Finch, an associate of Paul Weiss and former senior assistant deputy attorney general under Delrahim.
“But it could be more efficient: you get involved sooner, you don’t have to spend resources at the circuit court level, and you might get a positive evolution of the law without having to bring a full case. “, did he declare.
DOJ declarations of interest are often ‘only good’ for antitrust complainants, said Robert Litan of Berger Montague, who is involved in a proposed class action lawsuit against elite universities for alleged cartel price-fixing. .
Although the division limits statements to the legal standards of a case, rarely taking sides, its interpretation of the law under Kanter — and the Biden administration’s broader, pro-competition doctrine — tends to favor plaintiffs. The division argues, for example, that no-poaching agreements are inherently illegal, violate competition in labor markets, and it supports narrow interpretations of existing antitrust exemptions.
In Litan’s case, Henry et al c. Brown University et al., the division, in a July 7 statement, said the court should narrowly interpret the antitrust exemption for universities that admit students on the basis of need.
He backed another narrow exemption, this time for Major League Baseball, in a June statement in Nostalgic Partners LLC et al c. The Office of the Commissioner of Baseball. In that case, a group of minor league baseball teams sued MLB over a restructuring plan that removed 40 of the 160 teams from professional baseball’s farm system.
“When the DOJ comes in and says, ‘Here’s how you should interpret the law,’ that’s powerful,” said Dean Harvey, an associate at Lieff Cabraser who represents a proposed class suing their employer for no-poaching agreements. The division has twice filed declarations of interest in the case concerning the illegality of the agreements.
Risk of rejection
But not all judges want to hear from the DOJ. Federal Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois in March denied the government’s request to file a statement of interest in a case involving McDonald’s franchise non-poaching agreements.
The division wanted to revisit a previous Expression of Interest from 2019, which said agreements between franchises and their corporate supervisors not to hire staff from other franchises are not presumed illegal. Alonso refused to authorize the new declaration of interest “based on the principles of separation of powers” between the executive and judicial branches, according to a court transcript.
Such denials are rare, lawyers and professors said. Antitrust is a particularly complex area of law, made more complex by the economic research often required to properly apply the laws. Courts often realize the advantage of having the most knowledgeable antitrust body in the United States, said Eleanor Fox, professor of business regulation at New York University School of Law.
“The courts are generalists,” said Eric Hochstadt, a Weil partner who has been involved in three cases where the antitrust division has filed statements. “Most judges don’t have a lot of antitrust experience. It is useful for the court to bring in an expert agency, especially in a new area such as non-poaching or on immunity laws that have not been interpreted by the courts.
But the division also bears the risk that its expressions of interest will not be successful, said Barak Orbach, professor of law and business at the James E. Rogers Law School at the University of Arizona. One court’s rejection or pursuit of a different understanding of the law could damage the DOJ’s reputation and embitter other courts on its pronouncements, he said.
Orbach encouraged the division to choose its targets carefully and make sure every statement is airtight. Some recent filings were “sloppy” by focusing on making broad political statements rather than specific legal arguments, he said.
Expressions of interest are a cost-effective tool at a time when divisional resources are stretched and staffing levels are rebounding from a major drop under the Trump administration.
“It’s become a force multiplier for the DOJ,” said Andre Geverola, a partner at Arnold & Porter and the division’s former director of criminal litigation. “If there’s a private case out there that presents the right facts, the DOJ can jump on it and use those facts to push the law in any direction they want.” It’s more profitable for the DOJ because they don’t have to build the case themselves.
Beyond their relative effectiveness, declarations of interest allow the division to stay connected to a variety of representative antitrust cases even as it develops its own enforcement actions. Courts have shown a willingness to review at least declarations of interest filed in similar lawsuits outside their districts, although the declarations do not carry the weight of precedent.
Still, the department must make conscious decisions about how to spend its resources between reporting and enforcement, O’Neill said.
“You could say that agencies speak most powerfully when they take action on their own,” she said. “The value of taking this action versus filing a statement of interest must be considered.”