Assistant Attorney General Jonathan Kanter Delivers Remarks at the 2024 Georgetown Law Global Antitrust Enforcement Symposium

Remarks as Prepared for Delivery

Thank you for that kind introduction. This event is one of the hallmarks of antitrust policy every year, and it's always nice to speak at Georgetown, where Dean Robert Pitofsky taught. My thanks to the organizers for putting on this terrific event and for inviting me to join you once again for this enriching exchange of ideas.

We meet today amidst a historic moment in competition policy. We are witnessing - in real time - the reinvigoration of the antitrust laws as a tool to protect Americans' economic freedoms. Right now, in cases all over the country, public and private, we are seeing enforcement of the antitrust laws to deliver choice and opportunity for the American people.

We have gone from debating how to better address the competition problems in today's economy to watching the new era dawn all around us.

Just last month, a court decided a historic monopolization case brought by the Justice Department - the first filed and litigated by the Antitrust Division in over 20 years.[1]United States v. Google is just the second major monopolization victory by the division in nearly 50 years. While Section 2 cases had become a rare event, the division now has numerous significant monopolization cases and other conduct cases, including criminal monopolization cases, in active litigation across a wide range of industries. We have active litigation as we speak involving smartphones, advertising, concerts, agriculture, real estate and more.

I am just overwhelmed with pride and gratitude at the incredible staff of the Antitrust Division. All told, they have taken more than 170 significant actions on behalf of the American people in just the last two and a half years.

I firmly believe the Antitrust Division staff now comprise the most capable and formidable antitrust law firm on the planet. They truly exemplify the mission of the Justice Department to enforce the law against even the most well-resourced opponents and they do so without fear or favor.

The division staff have proven their skill in courts all around the country. They have won cases and advocated for decisions to protect competition in so many industries: airlines, book publishing, fast food and so many others. We now have won four civil trials dating back to the Penguin-Random House merger, and we will continue to press forward by litigating cases that we believe are in the public interest and consistent with the facts and the law.

As boardrooms take notice, the effects of those victories are reverberating across the economy, driving abandonments of anticompetitive deals and helping deter unlawful mergers and conduct in the first place. As my predecessor, the great Bill Baer, said, some deals should never leave the boardroom. We have seen more than 20 mergers abandoned in response to division concerns in just the last two and a half years and we are seeing fewer problematic deals come to us in the first place.

The American people are taking notice too. Increasingly, I hear messages of hope from people that I meet around the country outside the Beltway - entrepreneurs, farmers, creators, workers. Americans have a keen sense that competition matters because it can make a real difference in their lives. And they know how the abuses of market power can cause harm through higher prices, reduced opportunity and less competitive choices.

The people I hear from tell me that effective antitrust enforcement is about the people reclaiming economic freedom. Based on a foundation of an open and competitive economy, the path to economic freedom is built on freedom of choice and freedom of economic opportunity.

President Franklin Delano Roosevelt observed in 1944 that "true individual freedom cannot exist without economic security and independence."[2] He described economic needs that he likened to "a second Bill of rights," among them:

"The right to a useful and remunerative job…;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every [business], large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; [and]

The right of every family to a decent home."[3]

FDR's words ring true today. These are freedoms that every American deserves, and that we are seeing restored through our country through reinvigoration of the antitrust laws.

When I think about this incredible moment and the historic progress being made all around the country, it's important for me to focus and for us to focus on how we are affecting and helping the American public. Yes, there are important, abstract legal principles involved in antitrust enforcement, and absolutely, market realities are complex. Let me be clear: antitrust enforcement is a serious and rigorous exercise.

But antitrust is at its most effective, and most resonant, when we enforce for the benefit of the public good and not merely the institution of antitrust and competition law. We must remember that antitrust law enforcement and the study of antitrust and competition policy is a means to an end, not an end in and of itself. It serves a purpose. And that purpose is to enhance the lives of people by preserving economic freedom and opportunity.

Today, I would like to talk about how the antitrust laws are protecting the types of freedoms that FDR talked about so many years ago.

I. Antitrust Enforcement's Role in Restoring the Freedoms of Economic Opportunity and Choice to the American People

First, we are seeing many cases restoring freedom of opportunity. From their inception, the antitrust laws have protected the opportunity to compete by prohibiting conduct that would exclude entrepreneurs from markets or eliminate buyer competition.

For workers, the freedom of economic opportunity requires competitive markets that give them a chance to get a well-paying job and choose where and how they will work. As our new 2023 Merger Guidelines explain, if a merger would eliminate competition for workers, that can present problems under the antitrust laws, independent of effects in other markets.

We demonstrated that principle in successfully halting the proposed merger between Penguin-Random House and Simon & Schuster. We showed that combining two of the nation's largest book publishers would eliminate critical competition for authors, who rely and depend on competition between publishers when negotiating their advances. I'm pleased that the district court in D.C. agreed.[4]

The theory that prevailed in Penguin reaffirmed that workers matter and that labor markets matter in antitrust enforcement. The opinion paves the way for the protection of authors, creators and all types of workers who are affected by consolidation. That case was not just about money - which is important because it goes to the livelihood of authors who depend on a living wage and advances to fund their creations in the marketplace of ideas, something that Dean Pitofsky talked a lot about here at Georgetown - but it was about protecting the freedom to create and distribute ideas and speech, which goes to the heart of our democracy.[5]

We similarly supported Ms. Deslandes when she took on McDonald's for shutting her out of a higher paying job. McDonald's and its franchisees had a no-poach agreement, which prevented Ms. Deslandes from being hired for a management job at another McDonald's franchise.

She took her case to court, and we filed an amicus brief supporting her. Last year, the Seventh Circuit agreed and said that the antitrust laws do in fact protect competition for workers and allowed her case to move forward.[6]

We are also seeing the antitrust laws protect economic opportunity for farmers. Farmers deserve to be able to repair their own equipment and to earn competitive prices for their work.

For example, last year, we filed a brief in a private lawsuit against Deere and Company, arguing that the antitrust laws should permit review of the farmers' claims. The court agreed, holding that the antitrust laws can, in appropriate circumstances, protect the right to repair.[7]

Also last year, we secured a consent decree with Koch Foods, one of the largest poultry processors in the United States.[8] We alleged that Koch Foods had violated the Packers and Stockyards Act and the Sherman Act by requiring independent chicken farmers to pay a termination penalty if they wanted to switch from working with Koch to one of its rivals.

The consent decree put a stop to that practice and put companies on notice that the division stands ready to use every legal authority available to protect freedom of opportunity for farmers, including the Packers and Stockyards Act.

Our cases are also standing up for the opportunities of entrepreneurs and innovators to compete. Section 2 of the Sherman Act protects business opportunity by outlawing anticompetitive exclusionary conduct through monopolization. When we fill in the moats that surround the monopolists' castles, we reinvigorate innovation, encourage entrepreneurship and drive a more dynamic, effective economy for the benefit of all Americans.

Second, alongside economic opportunity is the freedom of choice at the heart of our free market system. We are seeing in case after case how the antitrust laws play a critical role in protecting Americans' freedom to choose between competitive options for where and how to spend their hard-earned dollars.

I think about the freedom to travel. Airline competition is critical to the ability for people to choose where, how, and what price to pay for their hard-earned vacation or visit a loved one. This freedom has been vindicated in two major recent litigation victories for the Antitrust Division.

Earlier this year, the division successfully blocked JetBlue's proposed acquisition of Spirit.[9] This was the first time that an airline merger had ever been blocked in court under the Clayton Act.

Similarly, the division stopped the Northeast Alliance between American Airlines and JetBlue, which a court agreed had ended all competition between them in the Northeast, almost as if it were a merger.[10] That victory restored competition in markets impacting 32 million air travelers.

Or think about the freedom to rent or buy a home. We know that the cost of housing is among the largest expenses for most families. But more than that, we are talking about the choice of where you live, the ability to buy or rent a home, and raise a family.

Our filings in private cases across the country have sounded the alarm on the risks of algorithmic collusion in rental markets.[11] Companies in every industry should know that they cannot hide behind an algorithm - including AI - to engage in practices that violate the antitrust laws.

And just last month, the division brought its first case involving the use of algorithms to coordinate and monopolize markets.[12] We allege in that case that a pricing algorithm violates the antitrust laws by decreasing competition among landlords in rental pricing.

The Antitrust Division has also taken numerous actions through court filings and related advocacy to make housing more affordable for millions of people across the country. Competition, not consolidation or coordination, should determine what Americans pay to rent and buy their homes.

Perhaps most importantly, the freedom of choice means freedom from criminal conduct among rivals who should otherwise be vigorously competing with each other to provide competitive prices, better quality and more innovation, among others. Antitrust crimes like bid-rigging and price- and wage-fixing deprive people of that choice. And it is Americans who ultimately pay the costs, through higher prices, lower wages and abuse of tax dollars when companies rig bids for government projects, for example. We have also seen multiple criminal monopolization cases, including convictions, after 45 years of not seeing a single case.

I am so proud of the more than 60 criminal convictions and resolutions in the last two and a half years obtained by the division. Our criminal program is focusing on proactive methods of detection, like wiretaps and undercover operations, and new forms of remedies, like divestitures, to send a very clear signal that antitrust crimes do not pay.

Those are just a fraction of the actions taken by the Antitrust Division in the last two and a half years, to go alongside so many more by the Federal Trade Commission, state attorneys general and private plaintiffs around the country.

I believe that the reason we are in this incredible moment of change is that the combined effect of all those efforts on the economic freedom of the American people is more than the sum of its parts. We are seeing a change in the nature of antitrust enforcement in this country that makes it more relevant, more effective, and more resilient and resonant as a tool to address modern market realities.

II. Drivers of the Reinvigoration of Antitrust Enforcement

I would like to highlight two key developments at the Antitrust Division that have helped to usher in and bolster this reinvigoration of antitrust enforcement.

1. Increasing litigation capabilities and expanding use of expertise

First, we have fortified and expanded our use of experienced trial lawyers to present courts with the best available expertise reflecting actual market realities. For generations, and still true today, the division has been home to the finest antitrust lawyers, economists, paralegals, professionals and staff. I am so proud of that. We have been building their expertise and experience one case at a time through a robust enforcement program and rigorous development of policy and advocacy.

In recent years, we have expanded these extraordinary capabilities. We launched the Litigation Program more than two years ago, and we have steadily expanded the division's litigation and trial expertise through this program across the division. We recruited experienced and talented litigators - first-chair trial lawyers who have deep experience trying civil and criminal cases. We have also created a Document Review Unit to assist with priority litigation matters and increase the efficiency of our capable litigators in the civil and criminal enforcement sections.

At the same time, we have also made a conscious commitment to expand our technical expertise and growing our Expert Analysis Group.

The first step to effective antitrust enforcement is to make sure that we understand how markets actually work in reality. So, we have hired, for example, data scientists who understand AI, technologists who understand the newest technological innovations and who can review code and behavioral economists who understand how businesses and consumers act. And we are expanding our fields of industry expertise further as we dig in to tackle major issues in areas such as healthcare and agriculture, which require deep technical industry and subject-matter expertise.

The combined effect of increasing our litigation skills and broadening our subject-matter expertise is to enable the courts to wrestle thoughtfully with the actual market realities of today's economy - not how they necessarily present in a model, but how they present in real life. In the crucible of litigation, the courts are engaged in a synthesis of modern market realities and the timeless values underlying the antitrust laws.

2. The reinvigoration of the antitrust laws through the sound application of statutory text and binding precedent

We have always known that advocates alone cannot change corporate conduct and restore economic freedom to the American people. Antitrust in the United States is ultimately an exercise of law enforcement and adjudication by courts.

Ironically, for a time many opponents of increased antitrust enforcement took refuge in the misguided idea that the federal courts would elevate policy over statutory text and binding precedent. When our Merger Guidelines relied on cases like Brown Shoe[13] and Philadelphia National Bank,[14] or when our monopolization cases pointed to United States v. Microsoft[15] and Grinnell,[16] some said the courts would ignore all that and defend a hands-off approach to antitrust.

Well, after years of debate, we have our answer: enforcers succeed when they bring courts rigorous cases that reflect a sound application of modern facts to the law. We see this in a number of recent opinions defending timeless antitrust principles and protecting economic freedom.

For example, numerous recent opinions by courts have rejected attempts by defendants to expand refusal-to-deal doctrine beyond its reasonable limits. Many defendants and their advocates characterize Trinko[17]as effectively overruling Section 2 by characterizing nearly every allegation of monopolization as a refusal to deal and arguing near-immunity. They argue that Trinko permits even the most anticompetitive unilateral conduct. But the courts have disagreed, repeatedly, because Trinko simply does not go that far.

For example, in Chase, the Tenth Circuit agreed with the position of the Antitrust Division's amicus brief.[18] The court properly distinguished a refusal to deal with a rival from a refusal to deal with a customer or third party.[19]

Similarly, in 2020, the Seventh Circuit rejected a broad application of the refusal to deal doctrine in Viamedia. It distinguished "a 'simple refusal to deal'…where one firm 'refuses to deal no matter what,'" from "'conditional refusals to deal' [where] one firm will refuse to deal with another firm unless 'some condition is met.'"[20]

And just last month, the Fourth Circuit followed suit in Duke v. NTE,restoring a Sherman Act challenge to an alleged monopolization.[21] In Duke, the Fourth Circuit acknowledged that the conduct could be understood as a refusal to deal with rivals. But it rejected the idea that, absent cessation of a prior course of dealing, the Sherman Act had nothing to say about anticompetitive refusals to deal.

The Duke court appropriately understood Trinko as asking whether the refusal to deal was motivated by an anticompetitive purpose. The Fourth Circuit contrasted the evidence in Aspen Skiing[22]that "revealed a distinctly anticompetitive bent" from the situation in Trinko, which "revealed nothing about dreams of monopoly."[23] Wherever we find evidence proving anticompetitive intent - whether in the cessation of prior dealing, the monopolist's course of conduct, or the emails and chats of executives - the Sherman Act is capable of reaching refusals to deal motivated by malice.

With this trilogy of Court of Appeals cases limiting the defensive use of Trinko, and numerous similar opinions coming from district courts across the country, there is clear message: Section 2 of the Sherman Act is not dead letter.

Duke also reaffirmed another important principle about Section 2. The Duke court explained that "when a court is faced with allegations of a complex or atypical exclusionary campaign, the individual components of which do not fit neatly within pre-established categories," it would be "too rigid" of an approach to only apply formalistic categorizations of conduct.[24] Not every instance of unilateral conduct is, or must fit into, a refusal to deal. Instead, like the Southern District of New York in Fubo the following week,[25] the Fourth Circuit agreed that monopolization claims must be assessed holistically.[26]

Similarly, the use of Brown Shoe to understand modern market realities with practical indicia is another great example. For years, enforcers struggled to apply the hypothetical monopolist test, which is often very valuable, particularly in modern markets or markets where there is ample evidence from actual monopolists - you do not need a hypothetical monopolist test if you have an actual monopolist test. The Google Search decision demonstrates how application of the Brown Shoe factors can provide the foundation for a rigorous, analytically sound approach to defining a relevant market even in instances where consumers pay no price for the product.[27]

That opinion followed a similar approach to market definition as the Fifth Circuit took in Illumina, which also applied a practical approach to understanding market realities under Brown Shoe.[28] And the court in Illumina used that flexible approach on the path to finding a vertical merger unlawful for the first time in over 40 years. Likewise, earlier this year, the Second Circuit in Regeneron expressly vindicated the flexible approach to market definition of Brown Shoe.[29]

Those who claim that law enforcers like the Antitrust Division can or should ignore Brown Shoe have been reminded by the courts in these and many other cases that the law is still the law and precedent is still precedent.

We were reminded of that rather explicitly by the judge in IQVIA, who rejected the defendants' argument that the foundational cases establishing the structural presumption are somehow out of date notwithstanding that it is durable precedent from the Supreme Court.[30]

And we were reminded of it by the judge in JetBlue/Spirit, who wrote: "To those dedicated customers of Spirit, this one's for you. Why? Because the Clayton Act, a 109-year-old statute requires this result - a statute that continues to deliver for the American people."[31]

I could not have said it better myself.

It is the honor of my life to play a part in driving these changes and bringing the American people's stories to the courts.

Alongside the incredible staff at the Antitrust Division, we look forward to the work ahead. We will continue - every day, with every ounce of energy we have, with every resource we are given - to fight for economic freedoms and rights for all Americans.

Thank you.

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