The confirmation hearing for Makan Delrahim to head the Antitrust Division of the United States Department of Justice is set for tomorrow, April 26. Some background on Mr. Delrahim and the upcoming confirmation hearing can be found here. Mr. Delrahim has garnered praise and respect from both sides of the aisle so his confirmation should be relatively non-controversial. Mr. Delrahim knows his way around the Antitrust Division and he will also no doubt get sound advice from experienced practitioners he’ll bring on board, as well as the career antitrust attorneys in the Division. But, what’s the use of having a blog if you can’t offer some unsolicited advice, so here goes.
- Suggestion 1: OPEN TWO NEW FIELD OFFICES
One of the big surprises of the Obama antitrust administration was the closing of four of the Antitrust Division’s seven field offices. The offices that were whacked were Atlanta, Cleveland, Dallas and Philadelphia. Each of these offices contributed significantly to international cartel enforcement, but also gave the Division a regional presence that facilitated leads and prosecutions on regional and local conspiracies. It may not be fiscally feasible to reopen all of the closed field offices, but certainly a renewed presence in the South and Southwest should be considered. I’ve written more about the benefits behind this proposal in a previous blog post (here).
A related suggestion is for the Antitrust Division to recommit to having attorneys serve short-term details in select US Attorney’s offices. The Division has a long history of these details, which allow for an expanded antitrust presence while also giving the opportunity to promising attorneys to develop trial skills.
- Suggestion Two: Offer Whistleblower Incentives
The Antitrust Division has long been opposed to any kind of whistleblower incentives for reporting suspected cartel activity. The primary reasons seem to be two-fold: 1) financial incentives would undermine the credibility of whistleblowers; and 2) the Antitrust Division may be inundated with unmeritorious claims.
I’ve written before why some sort of whistleblower incentive/protection should be offered (here). It is a subject that I’m seriously interested in and I’m currently working on an article I hope to publish in support of a cartel whistleblower incentive. It is a timely issue as there is concern that the Corporate Leniency Program may be running out of steam as the disincentives to self-reporting may be increasing. Also of interest, whistleblowers in the UK are just now being offered up to £100,000, as the CMA launched its first-ever advertising campaign to crack down on cartels (here).
- Suggestion Three: Corporate Leniency Roundtable
It would be a good idea for the Antitrust Division to facilitate a roundtable on the Corporate Leniency Program to solicit feedback from the plaintiff and defense lawyers in cartel practice. Off-the-record, confidential discussions between enforcement agencies and ABA Antitrust Section committees are common and often helpful.
As mentioned, there is considerable “noise” in the defense bar that the consequences of seeking leniency (the length and difficulty of the leniency proffers, the long-term disruptions to business, the follow on civil lawsuits; prosecutions by multiple jurisdictions) are contributing to a decrease in leniency applications. These observations may be rejected by the Division as nothing more than “working the ref” for the next leniency call, but an open discussion of this long-established program may be valuable. Likewise, the plaintiff bar may have some suggestions worth considering on the administration of the Corporate Leniency Program. A discussion can’t hurt—and its budget friendly, i.e. –free.
- Suggestion Four: Sentencing Guideline Reform
I have long been advocating reform of the antitrust sentencing guidelines for individuals. I’ve written quite a few times on the subject (here)(here)(here) and have had the opportunity to speak on the subject on several panels. My main beef is that the volume of commerce is the main vehicle for calculating an individual sentencing guideline range and the volume of commerce calculation rules are the same for the most and least culpable individual in a cartel. My concerns haven’t exactly lit a fire for guidelines reform; possibly because the guidelines are understood to be irrational and the Antitrust Division and the courts almost always depart from the recommended guideline range when negotiating or imposing a sentence.
PS. I want to thank my friend Allen Grunes, Konkurrenz Group for the catchy title, Makan Antitrust Great Again. We are both alumnus of the Antitrust Division, however, and feel the Division has already been great–but improvement is always possible.
Thanks for reading