Non-Prosecutorial Activities

• Pages: 237-260

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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 written guidelines, often jointly with the

Federal Trade Commission. Currently, the following Guidelines are in

force: the Horizontal Merger Guidelines (2010), the Antitrust Guidelines

for the Licensing of Intellectual Property (1995), the Antitrust

Enforcement Guidelines for International Operations (1995), the

Statements of Antitrust Enforcement Policy in Health Care (1996), and

the Antitrust Guidelines for Collaboration Among Competitors (2000).

1. Horizontal Merger Guidelines

In 2010, the Department of Justice and the Federal Trade

Commission jointly issued the Horizontal Merger Guidelines,1 which

replaced guidelines that were issued in 1992 and revised in 1997. The

Merger Guidelines describe the enforcement policy of the two agencies

concerning horizontal acquisitions and mergers and include the analytical

framework and specific standards used in analyzing such acquisitions

1. U.S. DEP’T OF JUSTICE &FED.TRADE COMM’N, HORIZONTAL MERGER

GUIDELINES (2010) [hereinafter HORIZONTAL MERGER GUIDELINES],

available at http://www.justice.gov/atr/public/guidelines/hmg-2010.pdf.

238 DOJ Civil Antitrust Practice and Procedure Manual

and mergers: “These Guidelines outline the principal analytical

techniques, practices, and the enforcement policy of the Department of

Justice and the Federal Trade Commission (the ‘Agencies’) with respect

to mergers and acquisitions involving actual or potential competitors

(‘horizontal mergers’) under the federal antitrust laws.”2

In 2006, the agencies issued a Commentary on the Horizontal

Merger Guidelines,3 which “remains a valuable supplement” to the new

Horizontal Merger Guidelines.4

2. Antitrust Guidelines for the Licensing of Intellectual Property

In 1995, the Department of Justice (DOJ) and the Federal Trade

Commission (FTC) jointly issued Antitrust Guidelines for the Licensing

of Intellectual Property.5 These Guidelines state the agencies’

enforcement policy “with respect to the licensing of intellectual property

protected by patent, copyright, and trade secret law, and pure know-

how.”6 As with other guidelines, their goal is to help practitioners

predict whether the agencies will challenge a practice as anticompetitive

by stating the agencies’ general policy and providing an analytical

framework, including the general antitrust principles implicated by the

licensing of intellectual property.7

2. Id. at 1.

3. U.S. DEP’T OF JUSTICE &FED.TRADE COMM’N,COMMENTARY ON THE

HORIZONTAL MERGER GUIDELINES (2006), available at http://www.

justice.gov/atr/public/guidelines/215247.pdf.

4. See HORIZONTAL MERGER GUIDELINES,supra note 1, at 1 n.1.

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

FOR THE LICENSING OF INTELLECTUAL PROPERTY (1995) [hereinafter

ANTITRUST GUIDELINES FOR THE LICENSING OF INTELLECTUAL

PROPERTY], available at http://www.justice.gov/atr/public/guidelines

/0558.pdf.

6. Id. at 1. The Guidelines expressly state that they do not cover the

antitrust treatment of trademarks because they “deal with technology

transfer and innovation-related issues” rather than the “product-

differentiation issues that typically arise with respect to trademarks.” Id.

n.2.

7. See ANTITRUST GUIDELINES FOR THE LICENSING OF INTELLECTUAL

PROPERTY,supra note 5, at 1-2.