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GAL COMPETITION PROJECT UNITED STATES Mandate and Due Process Norms. Harry First, Eleanor Fox, and Daniel Hemli February 4, 2011. ANTITRUST ENFORCEMENT STRUCTURE: U.S. Federal Trade Commission. Department Justice Antitrust Division. Federal Law. Fifty U.S. State AGs, plus
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GAL COMPETITION PROJECTUNITED STATESMandate and Due Process Norms Harry First, Eleanor Fox, and Daniel Hemli February 4, 2011
ANTITRUST ENFORCEMENT STRUCTURE: U.S. Federal Trade Commission Department Justice Antitrust Division Federal Law Fifty U.S. State AGs, plus 4 U.S. Territories and the District Columbia
AND THERE’S MORE . . . Private Enforcement Federal Law State Law U.S. Sectoral Agencies 50 U.S. State AGs, etc.
MANDATES • DOJ: bifurcated judicial model • Executive branch: AAG • civil and criminal • competition advocacy • lacuna on trade • FTC: integrated agency model, but… • 5 Commissioners • unfair methods of competition/“unfair or deceptive acts or practices” • competition advocacy • State AGs: elected • Coordination: networked enforcement
INVESTIGATIONDECISION TO PROCEED • DOJ • staff opportunities: white papers • criminal process somewhat different • AAG: the decider • FTC • staff opportunities • BE and BC separate recommendations • approaching Commissioners separately
ADJUDICATION AND APPEALS • DOJ • litigation in civil and criminal courts • FTC • court litigation: preliminary injunctions • “Part 3” administrative litigation: ALJs • appeals to the Commission: independence? • Appellate review
EQUALITYNON-DISCRIMINATION • The exemplar: Zenith v. Matsushita • Merger enforcement? • And how ‘bout those cartels? • 68 of the 80 firms fined $10 million or more were non-U.S. firms • 16 of the 18 firms fined $100 million or more were non-U.S. firms
PROPORTIONALITY • Not technically required • Civil remedies: tailoring • Criminal penalties • U.S. Sentencing Guidelines • fines: harm/fault based • jail terms: difficult to say
FLASH POINTS • Multiple enforcement • potential inconsistencies in results • potential unfairness to defendants • but: benefits of decentralized enforcement • FTC procedures • lack of separation of functions • Commissioner as ALJ