Trump administration steps up push to sway antitrust cases

The Trump administration embarked on an extensive effort to sway judges in antitrust cases in 2019, with the justice department filing more legal arguments in competition lawsuits where it was not a party over 12 months than the Obama administration did in eight years.

Makan Delrahim, who was appointed by Donald Trump in 2017 to lead the antitrust division, has spearheaded an “amicus programme” under which justice department lawyers are increasingly inserting themselves into antitrust litigation to advise judges how to rule.

The result has been a flurry of legal briefs that have pushed patent holder-friendly positions, undercut lawsuits brought by other enforcement agencies and placed the justice department on the side of Mr Delrahim’s former lobbying client, Qualcomm, the chipmaker.

The antitrust chief has been “especially aggressive” in weighing in on cases where the justice department is not a party, said Jonathan Jacobson, an antitrust partner at Wilson Sonsini Goodrich & Rosati, who called the effort “absolutely the right thing to do”. He said Mr Delrahim had probably “filed more of these briefs per month than anyone in division history”.

In fiscal year 2019 the antitrust division filed 20 briefs in district and appeals court cases in which it was not a party, outstripping by far any year since 1970, the earliest date for which the justice department provides records. The increase in amicus brief activity contrasts with the historically low number of criminal antitrust prosecutions the division brought last year.

We have not been able to please all of the people all of the time. But of course that is fine with us

The drive has drawn fire from Democrats like David Cicilline, the chair of the House antitrust subcommittee, who claimed in a letter in May that the division was “prioritising side projects over its main job”. He accused Mr Delrahim of running the division “more like an industry-funded think-tank than our nation’s premier antitrust enforcer”.

A justice department spokesman said: “The antitrust division‘s amicus briefs in private litigation has been a highly efficient and a high-impact use of our resources to promote competition.” In a letter responding to Mr Cicilline in August, the division said “the vast majority” of its resources were focused on enforcement activity.

Historically, the division has become involved in cases at the Supreme Court, or when invited by appeals court judges. Mr Delrahim has moved earlier in the litigation process, filing briefs in district courts.

The spike in briefings has reshaped how antitrust lawyers represent corporate clients. Increasingly, persuading the justice department to weigh in on your side is a part of antitrust litigation strategy, according to defence lawyers. “This is the sort of thing you want to put on your front burner, whereas it was an afterthought before,” said one.

Mr Delrahim, a patent lawyer by training, has weighed in on patent disputes to advance his view that intellectual property holders owe little duty under antitrust law to provide licences to buyers, at times citing his own speeches to urge restraint by judges.

Along with the states of Louisiana, Ohio and Texas, he has argued in support of a former client, Qualcomm, as it tries to fend off a class-action lawsuit. In a related case, from which Mr Delrahim is recused, the division has gone to war with its sister agency, the Federal Trade Commission, to defend Qualcomm from the commission’s lawsuit.

Officials in other agencies have also felt the division step on their toes as Mr Delrahim has expanded the amicus programme.

When the city of Oakland sued its football team, the Oakland Raiders, and the National Football League for the Raiders’ planned moved to Las Vegas, Mr Delrahim knocked down part of the city’s argument.

In Washington state, where the Democratic attorney-general has led a crackdown on fast-food chains that bar franchise-holders from poaching workers from within the chain, the antitrust chief defended the practice in a set of class-action lawsuits.

Recently, Mr Delrahim has fought several Democratic-led states that are suing to block T-Mobile’s takeover of Sprint, a deal he approved with divestitures. A decision on that matter is expected next month.

Michael Kades, director at Equitable Growth, which seeks tougher antitrust enforcement, criticised Mr Delrahim for acting like “the tsar of all antitrust enforcement”, adding: “They shouldn’t be interfering in someone else’s decision to enforce.”

Officials in the antitrust division have shrugged off the controversy. “We have not been able to please all of the people all of the time. But of course that is fine with us, because we are not in the business of satisfying a particular constituency,” said Michael Murray, a deputy to Mr Delrahim, in a speech last year.

He noted that beyond the Washington state hiring cases, the division had attacked the use of no-poaching agreements in other contexts, such as a case where two medical schools in North Carolina had agreed not to hire each other’s staff.

The increased activity of the amicus programme served to discourage parties from “making the more extreme versions of their arguments” for fear that the antitrust division would appear and “undermine their credibility”, Mr Murray said.

The justice department spokesman said the division “values its relationships with state enforcers.” Its arguments advanced “longstanding” positions on the law, he added. “We have advocated for narrower interpretations of antitrust exemptions and immunities.”

Judges have received the interest of the justice department with varying levels of appreciation, irritation and bemusement.

One district judge last year told an antitrust division lawyer it was a “pleasure” to hear their views, while another thought their briefings were “unhelpful”.

In a hearing for the Oakland case, the judge in San Francisco asked one federal attorney whether they had really flown all the way from Washington.

“Wow,” the judge said. “That is dedication.”