Consent Decrees

• Pages: 235-248

235

CHAPTER IX

CONSENT DECREES

A. Decree Negotiation

“In general, adequate relief in a civil antitrust case is relief that will

(1) stop the illegal practices alleged in the complaint, (2) prevent their

renewal, and (3) restore competition to the state that would have existed

had the violation not occurred.”1 In many cases, the Division can obtain

such relief without taking a case to trial through the process of

negotiating and entering civil consent judgments.2 Decrees may deal

with present or threatened harm, and may have both retrospective and

prospective elements.3

Consent negotiations are conducted by Division staff under the

immediate supervision of the appropriate Section Chief.4 Division staff is

encouraged to reuse stock language from previous decrees to set the tone

for discussions and to refer to the Division’s merger policies in consent

decrees involving merger issues.5 The Section Chief will consult with the

Director of Civil Enforcement, General Counsel, and the assigned

Deputy Assistant Attorney General (DAAG) when significant issues

arise in negotiations and before any written settlement proposal is

submitted to defense counsel.6 In all Division decree negotiations, final

authority to approve a proposed judgment rests with the Assistant

Attorney General (AAG) and pursuant to the Antitrust Procedures and

Penalties Act (APPA or Tunney Act), the judgment is subject to

withdrawal or change at any time prior to its formal entry by the court.7

1. U.S. DEP’T OF JUSTICE, ANT ITRUST DIV. MANUAL IV-50 (5th ed rev.

Aug. 2017) [hereinafter Antitrust Div. Manual],

https://www.justice.gov/atr/division-ma nual.

2. See id.

3. See id.

4. See id. at IV-55.

5. See id.

6. See id.

7. The Antitrust Division negotiates and enters civil co nsent judgments

under the Antitrust Procedures and Penalties Act of 1974, 15 U.S.C. §16

(commonly referred to as the “APPA” or “Tunney Act”). The AP PA was