In a series of recent actions, the Department of Justice (DOJ) has been ramping up antitrust enforcement, particularly in the technology sector:  

  • In May the DOJ withdrew a report concerning monopolization offenses issued under the previous administration. According to Christine Varney, Assistant Attorney General in charge of the Department’s Antitrust Division, the enforcement approach set forth in that report raised too many hurdles to government antitrust enforcement.
  • In early June it was reported that the DOJ is investigating the recruiting and hiring practices of some large U.S. tech companies, including Google and Apple. The government is reportedly investigating whether the companies entered into illegal agreements not to recruit each other’s employees.
  • On July 2, the DOJ officially announced an investigation into the settlement that Google reached with the Author’s Guild and the Association of American Publishers over the Google Books search engine. One issue raising questions is whether provisions protecting Google against lawsuits over orphaned works (books that are under copyright but whose owners cannot be found) give Google an unfair advantage over competitors who lack special protections.  
  • Also this week, the DOJ filed a brief before the Second Circuit regarding an important issue at the intersection of patent and antitrust law. The government argued that so-called “reverse payments” from a branded drug manufacturer to a potential generic competitor, in order to delay entry by the generic, should be presumptively unlawful.  

This activity represents a dramatic shift in the DOJ’s enforcement approach. Under the Bush administration, the DOJ Antitrust Division focused nearly exclusively on prosecuting hard-core criminal cartel activity and on reviewing mergers. It is now clear that DOJ antitrust enforcement is becoming far more aggressive on the civil side, and conduct that businesses may not have paid great attention to during the last eight years now requires careful antitrust review.  

Click here to read more about the withdrawal of the monopolization report.