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On May 31, 2018, Principal Deputy Assistant Attorney General Andrew Finch delivered an important policy statement at the ABA antitrust in a Conference in Seoul, Korea. Finch remarks of May 31, 2018. The most widely reported aspect of the speech was its focus on international antitrust cooperation. Indeed, the following day Assistant Attorney General Makan Delrahim announced a formal initiative “to help finalize and join the global multilateral framework in procedures in competition law and enforcement. Delrahim’s June 1st remarks on Global Antitrust Enforcement at the Council of Foreign Relations.
Continue Reading Principal Deputy Assistant Attorney General Finch: Compliance Re-Evaluation?

Last year, as noted in this blog, the Antitrust Division issued one of its fairly rare but critically important “Frequently Asked Questions” publications concerning its Amnesty Program. In January 2017, DOJ said explicitly that for Type B amnesty it retained discretion to prosecute senior executives. Defense counsel greeted this development with widespread alarm. Type B amnesty is frequently what DOJ offers to reporting companies if DOJ had any information of any kind about the reported activity. Few thought that mattered very much until January 2017 when DOJ’s FAQ pronouncement in practical effect imposed on defense counsel the need to advise a corporate client that amnesty might not apply to senior executives—with a likely attendant chilling effect on a company’s desire to participate in the program.
Continue Reading Senior Executive Type B Amnesty Redux — A Rare Correction From DOJ (Or Not?)

After a lengthy confirmation process, Makan Delrahim has been confirmed by the Senate to serve as the next U.S. Assistant Attorney General for the DOJ’s Antitrust Division. While President Donald Trump originally announced Delrahim’s nomination back on March 27, 2017, the confirmation process has been slowed due to paperwork issues and opposition by some lawmakers in Washington, D.C. over the past few months.
Continue Reading Makan Delrahim Confirmed as U.S. Assistant Attorney General for Antitrust Division

In the past, the Antitrust Division has used its “Frequently Asked Questions” piece to announce significant changes in the Amnesty Program. In  November 2008, for example, they made mandatory an explicit admission of criminal wrongdoing. Before then, the applicant need only have reported “possible” criminal activity. FAQs, p.6, fn. 7

The Division’s January 17, 2017, edition makes two more very significant changes: (1) to obtain a marker, counsel must identify the client (FAQs, p.3) and (2) amnesty for executives is not guaranteed under the often-used Type B Leniency. In that situation, “…the Division has more discretion…”( FAQs, p. 22).…

Continue Reading Frequently Asked Questions About the Amnesty Program—Major Changes in the Antitrust Division’s January 2017 Update

By the votes of a nation’s electors, the future of U.S. antitrust enforcement moved from “pragmatic aggressive enforcement as usual” to “too early to call.” The unexpected election of President-elect Donald J. Trump opened wide the speculation or mystery of what he and his advisors are planning as his administration’s antitrust policy. Given the paucity of his statements on antitrust policy, and the random nature of his few comments, we must dig deeply to formulate the outline of his enforcement plans or speculate about practices and policies in the spirit of the campaign’s “America First” rhetoric.
Continue Reading Reflections on the Next Four Years of Antitrust Enforcement

On June 9, 2016, the Antitrust Division of the United States Department of Justice (“DoJ”) filed a complaint against the Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Health Care System (“CHS”) in the United States District Court for the Western District of North Carolina. (United States of America and State of North Carolina v. Charlotte Mecklenburg Hospital Authority). The complaint accuses CHS of using “contract restrictions that prohibit commercial health insurers in the Charlotte area from offering patients financial benefits to use less expensive healthcare services offered by CHS’s competitors.” (Complaint, Preamble) In effect, the complaint is attacking a type of widely used contracting provision in which acute care hospital systems seek to prohibit insurance company payors from using “steering” restrictions, which would otherwise be used to steer their insured patients to lower cost healthcare providers, including lower-cost hospitals, in exchange for lower premiums in so-called “narrow network” insurance plans. The complaint then alleges that CHS has an approximately 50% share of the market for acute inpatient hospital care in the Charlotte metropolitan area, allegedly conferring market power on CHS.
Continue Reading U.S. Department of Justice Sues North Carolina Hospital System for Insisting on Anti-Steering Provisions in Insurance Reimbursement Contracts