Non-Prosecutorial Activities

• Pages: 249-285

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CHAPTER X

NON-PROSECUTORIAL ACTIVITIES

The Antitrust Division engages in several activities in addition to

investigation and civil litigation. These include promulgating guidelines

and policies on particular areas of antitrust enforcement, issuing business

review letters, engaging in competition advocacy both within the

executive branch and in the legislative arena, participating as amicus

curiae in private suits, making public statements, and communicating

with Congress.

A. Guidelines

The Antitrust Division has announced its enforcement policies in

certain key areas through writ ten guideline s, often jointl y with the

Federal Trade Commission. Currently, the following Guidelines are in

force: the Antitrust Guidelines for the Licensing of Intellectual Property

(2017), the Antitrust Enforcement Guidelines for International

Enforcement and Cooperation (2017), Antitrust Guidelines for Human

Resources Professionals (2016), the Joint Statement on Preserving

Competition in the Defense Industry (2016), the Antitrust Policy

Statement on Sharing of Cybersecurity Information (2014), the

Statement of Antitrust Enforcement Policy Regarding Accountable Care

Organizations Participating in the Medicare Shared Savings Program

(2011), the Horizontal Merger Guidelines (2010), the Antitrust

Guidelines for Collaboration Among Competitors (2000), and the

Statements of Antitrust Enforcement Policy in Health Care (1996).

1. Antitrust Guidelines for the Licensing of Intellectual Property

In 2017, the Department of Justice (DOJ) and the Federal Trade

Commission (FTC) jointly issued revised Antitrust Guidelines for the

Licensing of Intellectual Property,1 replacing guidelines issued in 1995.2

1. U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST GUIDELINES

FOR THE LICENSING OF INTELLECTUAL PROPERTY (2017) [hereinafter

Antitrust Guidelines for the Licensing of Intellectual Property],

https://www.justice.gov/atr/IPguidelines/do wnload.

250 DOJ Civil Antitrust Practice and Procedure Manual

Like their predecessor, the revised Guidelines state the agencies’

enforcement policy “with respect to the licensing of intellectual property

protected by patent, copyright, and trade secret law, and of know-how.”3

The Guidelines are intended to help practitioners predict whether the

agencies will challenge a practice as anticompetitive by stating the

agencies’ enforcement policy and providing an analytical framework for

review, including the general antitrust principles implicated by the

licensing of intellectual property.4

In 2007, the agencies jointly issued a report on issues at the

intersection of antitrust law and intellectual property, supplementing the

original 1995 guidelines.5 The supplemental report is incorporated and

cited in the 2017 Guidelines.

2. Antitrust Enforcement Guidelines for International Enforcement

and Cooperation

Also in 2017, the DOJ and the FTC jointly issued revised Antitrust

Enforcement Guidelines for International Enforcement and Cooperation,6

replacing guidelines on international operations issued in 1995.7 These

Guidelines provide guidance to businesses engaged in international

operations on questions that relate to the agencies’ international

2. U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST GUIDELINES

FOR THE LICENSING OF INTELLECTUAL PROPERTY (1995),

http://www.justice.gov/sites/default/files/atr/legacy/2 006/04/27/0558.pdf.

3. Antitrust Guidelines for the Licensing of Intellectual Property, supra note

1, at 1. The Guidelines expressly state that they do not cover the antitr ust

treatment of trademarks because they “deal with tec hnology transfer a nd

innovation-related issues” rather than the “product-differentiation issues

that typically arise with respect to trademarks.” Id. n.1.

4. Id. at 1-2.

5. U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST

ENFORCEMENT AND INTELLECTUAL PROPERTY RIGHTS: PROMOTING

INNOVATION AND COMPETITION (2007), https://www.justice.gov/sites/

default/files/atr/legacy/2007/07/11/222655.pdf.

6. U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST

ENFORCEMENT GUIDELINES FOR INT’L ENFORCE MENT AND COOPERATION

(2017) [hereinafter Int’l Antitrust Enforcement Guidelin es], https://www.

justice.gov/atr/internationalguidelines/download .

7. U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST

ENFORCEMENT GUIDELINES FOR INT’L OPERATIONS (1995), http://www.

justice.gov/atr/antitrust-enforcement-guidelines-interna tional-operations.

Non-Prosecutorial Activities 251

enforcement policy.8 In addition to describing the antitrust laws enforced

by the agencies,9 the Guidelines discuss the jurisdictional and comity

issues often presented in cases involving international operations.10 The

principal addition in the revised Guidelines is a section detailing the

agencies’ approach to international cooperation, including the legal basis

for cooperation, types of information exchanged, confidentiality

safeguards and waivers, and remedies.11

3. Antitrust Guidelines for Human Resources Professionals

In October 2016, the agencies jointly issued guidelines to educate

human resources (HR) professionals responsible for hiring and

compensation decisions about potential violations of the antitrust laws.12

The HR Guidelines were issued following enforcement actions by the

agencies against “employers that have agreed not to compete for

employees[,]” and provide “general principles to help HR professionals

and the companies they represent avoid running afoul of the antitrust

laws as they relate to agreements and communications among

employers.”13

The HR Guidelines explain that the antitrust laws proscribe: (i)

agreements among employers not to recruit certain employees or not to

compete on terms of compensation (so-called “Naked wage-fixing or no-

poaching agreements”)14; and (ii) sharing sensitive information with

competitors, such as non-public compensation information, including

during pending merger reviews .15 The HR Guidelines highlight various

agency enforcement actions challenging the conduct described above.16

The agencies have also endeavored to provide practical guidance for

HR professionals. The HR Guidelines include, for example, answers to

common antitrust-related questions that HR professionals may have.17

8. Int’l Antitrust Enforcement Guidelines, supra note 6, at pt. 1.

9. Id. at pt. 2.

10. Id. at pts. 3 -4.

11. Id. at pt. 5.

12. U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST GUIDELINES

FOR HUMAN RESOURCE PROFESSIONALS (2016), [hereinafter HR

Guidelines], https://www.justice.gov/atr/file/903511/download.

13. Id. at 2.

14. Id. at 3-4.

15. Id. at 4-6.

16. See generally id.

17. Id. at 6-9.