On August 20, Makan Delrahim, Assistant Attorney General in charge of the Antitrust Division at the U.S. Department of Justice, announced a series of changes in the Division’s structure and operational responsibilities. Those changes fall into three categories.
First, the Division is reallocating certain “commodities” (i.e., industries it review) across its civil enforcement sections. Prior to the reallocation, the enforcement of mergers and conduct in the financial services, banking, insurance, and credit card businesses were spread across four different sections within the Division, and media, broadcast, and telecommunications were divided between two sections. Under the reorganization, the Division will dedicate all financial services to a single section, and combine broadcast and telecommunications in a single section. Combining the responsibilities for broadcast and cable, in Assistant Attorney General Delrahim’s view, “reflects the integration in these industries and will streamline our enforcement and review in these sectors.”
Second, the Division has created a new office, the Office of Decree Enforcement and Compliance (ODEC). ODEC has been given primary responsibility for enforcing judgments and settlement decrees in civil matters. It will serve, as Delrahim put it, “as the dedicated watchdog for judgment and decree compliance,” and is charged with working with Antitrust Division attorneys, monitors, and compliance officers to ensure the effective implementation of and compliance with those civil agreements.
Third, the Division has created a Civil Conduct Task Force (CCTF) to focus full time on civil non-merger work. The CCTF will consist of both a core group of fully dedicated attorneys and attorney designees from each of the Division’s six civil sections and three field offices. All CCTF members are to be staffed on CCTF-lead civil conduct investigations.
The rationale for the CCTF’s creation, according to Delrahim, is “to ensure that when the Division gets busy with merger reviews with statutory deadlines, that there is still an independent group of dedicated attorneys with the mandate to execute against aggressive timelines in our non-merger cases.” The objective is to have the CCTF “build competencies that are unique to civil conduct cases, where the key questions, and the posture of the parties under investigation, are quite different from merger investigations,” and to ensure “that these competencies are shared with the civil sections and the field offices when they lead conduct cases as well.”
Note: Enforcement agency reorganizations and revisions ordinarily attract minimal public attention, other than from attorneys whose practices focus on those agencies. While that is likely to be true of these Antitrust Division changes as well, antitrust practitioners should closely monitor subsequent developments stemming from the changes.
Within the next year, both Division attorneys and private practitioners should see significant benefits flowing from the consolidation of related industry sectors in a single Division section. In contrast, it may take two or more years before the worth of the ODEC and the CCTF can be clearly established, but any measures that reduce the stop-and-start handling of certain antitrust investigations and provide more consistent oversight of antitrust decree enforcement should be welcome.