Antitrust Settlements: The Culture of Consent

William E. Kovacic: An Antitrust Tribute – Liber Amicorum (Vol. I) (Charbit et al. eds., February 2013)

George Mason Law & Economics Research Paper No. 13-18

17 Pages Posted: 28 Feb 2013  

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Date Written: February 27, 2013

Abstract

The beginning of a shift toward a more regulatory and less litigation-oriented regime of antitrust enforcement was observable by the mid-1990s, if not earlier. The transition toward this more bureaucratic approach by antitrust enforcement agencies is the subject of our analysis. Consent decrees create potential for an enforcement agency to extract from parties under investigation commitments well beyond what the agency could obtain in litigation — commitments that may impair rather than improve competition and thereby harm consumers. The consequences of such consent decrees, that is, are borne not only by the parties that are subject to them, but also by consumers and by non-parties who glean the agency’s enforcement position from the terms of those decrees. Moreover, consent decrees signal to foreign competition authorities that such commitments are appropriate and, consequently, the FTC and the Division lose the ability they might otherwise have to convince other agencies to minimize their own departures from the appropriate standard. We proffer that the culture of consent at antitrust agencies both in the United States and abroad has had an untoward effect upon the agencies’ selection of cases to bring and, more certainly, upon the remedies the agencies obtain in settlement agreements.

Keywords: 3M Co., Apple, CID, Civil Investigative Demand, Credit Suisse, Federal Trade Commission, Google, H&R Block, ITA, Intel Corporation, LePage’s Inc., Milton Friedman, N-Data, Nevada, South Africa, Trinko, UnitedHealth Group, United States v. Otis Elevator Company, Wal-Mart, welfare, William E. Kovacic

JEL Classification: K21, K23, L40, L41, L42, L43, L44, L51

Suggested Citation

Ginsburg, Douglas H. and Wright, Joshua D., Antitrust Settlements: The Culture of Consent (February 27, 2013). William E. Kovacic: An Antitrust Tribute – Liber Amicorum (Vol. I) (Charbit et al. eds., February 2013); George Mason Law & Economics Research Paper No. 13-18. Available at SSRN: https://ssrn.com/abstract=2225894

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Joshua D. Wright (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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