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GAL COMPETITION PROJECT UNITED STATES Mandate and Due Process Norms

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 PROJECT UNITED STATES Mandate and Due Process Norms

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  1. GAL COMPETITION PROJECTUNITED STATESMandate and Due Process Norms Harry First, Eleanor Fox, and Daniel Hemli February 4, 2011

  2. 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

  3. AND THERE’S MORE . . . Private Enforcement Federal Law State Law U.S. Sectoral Agencies 50 U.S. State AGs, etc.

  4. 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

  5. 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

  6. 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

  7. 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

  8. PROPORTIONALITY • Not technically required • Civil remedies: tailoring • Criminal penalties • U.S. Sentencing Guidelines • fines: harm/fault based • jail terms: difficult to say

  9. 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

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