DOJ weighs in on more antitrust cases, with mixed success

10 October 2019 9:01am

1 October 2019, by Leah Nylen and Joshua Sisco

The Justice Department has been weighing in on more antitrust cases over the past two years in an effort to help shape the law. In 19 instances where DOJ has weighed in, the courts have adopted the DOJ’s views in eight and rejected them in five, according to an MLex analysis. Six other matters resolved without a decision addressing the DOJ's concerns.

Assistant Attorney General for Antitrust Makan Delrahim, who took his position in September 2017, has made the amicus initiative a priority. In comments to a Senate panel this month, Delrahim said the filings allow the DOJ “to address developments in the case law earlier and more frequently, offering us the opportunity to have an outsized impact with our resources.”

In appeals courts, the Justice Department can intervene as an amicus, or friend of the court. In district courts, the division submits a “statement of interest” outlining its views. At the Supreme Court, the Justice Department is represented by the solicitor general, who authors briefs and argues antitrust cases before the high court with input from the antitrust division.

During Delrahim’s tenure, the agency has filed 32 briefs. Four of those involved Supreme Court cases, with the remainder split between federal district and appeals courts and state courts. (The agency also filed briefs at the Supreme Court suggesting the justices agree to hear certain antitrust cases. MLex didn’t include those cert recommendations in the analysis — only whether the justices later agreed with the DOJ’s merits briefs in the cases.)

The MLex analysis considered each brief discretely along with each resulting opinion. In 13 of the 32 matters, the courts have yet to issue a decision.

Of the 19 resolved instances, the Justice Department’s views were adopted in eight. In five others, courts rejected the DOJ’s views. Two of those matters are now on appeal to higher courts, giving the DOJ another opportunity to weigh in. In a third, the parties haven’t yet said whether they will appeal.

In the remaining six instances, three were dismissed before a judge ruled on the substantive issue and three were resolved on other grounds. However, a Justice Department spokesman said that the DOJ can consider itself successful even without a ruling directly in the agency’s favor.

“In certain cases, we file an amicus brief to argue that a court should not adopt an erroneous argument advanced by one of the parties,” a DOJ spokesperson said. “When the court rules on other grounds and does not advance the erroneous argument, we naturally consider that a victory, whether they mention the erroneous argument or not.”

The Justice Department’s internal accounting differs somewhat from MLex’s.

The antitrust division doesn’t count Supreme Court cases — which are litigated by the solicitor general — and doesn’t consider a case a win or loss until all appeals are exhausted.

“Our position has prevailed in seven matters, we have lost in zero matters, and we have successfully avoided a negative outcome in five matters,” the spokesperson said. “We do not include district court rulings on appeal in our statistics because they are not final as a legal matter and we wish to respect the rights of litigants on appeal and be consistent with Department practices.”

The DOJ's most recent filing was on 30 September 2019, when the division submitted a statement of interest in a class action against the National Association of Realtors and several residential brokerage companies. The division objected to NAR’s assessment of its conduct as having been blessed by the department through a 2008 consent decree that expired last year.

The Justice Department has seen success in cases involving no-poach agreements. In two instances so far, district courts have agreed with the antitrust division that the agreements — where companies promise not to hire each others’ employees — should be considered per se, or automatic, violations of the antitrust laws. A third case related to no-poach was among those dismissed without a substantive decision for or against the DOJ’s position.

Many of the briefs relate to various exemptions and immunities to the antitrust law. The Justice Department has weighed in on six different cases related to state action immunity, which allows states to immunize conduct that would otherwise violate antitrust law. The DOJ tends to seek limits on that immunity. Two courts adopted the DOJ’s views, two instances were resolved on other grounds, and two — both in the Eleventh Circuit — remain pending.

Prosecutors also used an amicus brief to push back against the defense of Chinese companies that their government’s involvement supersedes US law. At the US Supreme Court, a US vitamin importer and the DOJ successfully argued that a foreign government’s interpretation of its laws should be considered, but not given conclusive deference.

And Chinese electronics maker Irico is awaiting a ruling from a California court on whether the Foreign Sovereign Immunities Act bars accusations in a class action that it fixed prices of cathode ray tubes used in television screens.

By far the most controversial intercessions involve the DOJ’s briefs in the US Federal Trade Commission’s antitrust case against Qualcomm. In three separate briefs — one at the district court and two on appeal — the DOJ has contradicted the views of the FTC.

In the district court, the DOJ urged US District Judge Lucy Koh to hold a hearing before issuing an order. Koh declined.

In Qualcomm’s appeal, currently pending at the US Court of Appeals for the Ninth Circuit, DOJ disagreed with its sister agency by pushing for a stay pending the appeal. The Ninth Circuit sided with the DOJ there and stayed the case.

The DOJ later filed a brief in support of Qualcomm that Koh’s decision should be overturned. The Ninth Circuit is expected to hear arguments in January.

The DOJ is also supporting Qualcomm in a pending class action appeal in which consumers are suing over the same patent licensing practices challenged by the FTC.

Some judges said they are receptive to filings by the government. “I welcome it. I’m not necessarily going to buy it, but I welcome it,” US District Judge David Proctor said in March at a panel discussion with US judges on antitrust cases.

"If I had a government antitrust agency asking to file an amicus brief, I would feel differently than other private organizations,” US District Judge Beth Labson Freeman said at the same panel discussion.

A couple of months later, Labson Freeman found herself presiding over an antitrust case with a DOJ statement of interest. In that case, Symantec and others are accused of enforcing anti-competitive product testing standards. Labson Freeman didn’t address the government’s arguments, but dismissed the case on other grounds without prejudice.

But not everyone has been as receptive to the DOJ’s input. Koh cursorily addressed the DOJ’s brief in the district court Qualcomm matter, saying that the agency waited until three months after the trial to chime in and didn’t identify a valid reason for a remedies hearing.

In a case challenging the Oakland Raiders’ upcoming move to Las Vegas, a federal magistrate judge sided with the DOJ in finding that lost tax revenue wasn’t a basis for an antitrust claim. But US Magistrate Judge Joseph Spero appeared less enamored with the DOJ at a hearing in July in San Francisco.

"You didn’t come out all the way from Washington, did you?" Spero asked the antitrust division’s lawyer. DOJ attorney Jeffrey Negrette said that he had.

"Wow, that is dedication," Spero said. The magistrate judge then didn’t ask Negrette to participate in the hearing.

And in May, Representative David Cicilline — who heads the House Judiciary’s antitrust subcommittee — sent a letter to the Justice Department questioning the amicus program. In particular, Cicilline criticized filings in two cases that he said would make private lawsuits more difficult.

“The Antitrust Division’s recent zeal for filing amicus briefs stands in stark contrast with the paucity of enforcement actions,” Cicilline said. “The Division’s misguided allocation of resources suggests Congress should reconsider how to allocate the Division’s budget.”