Principal Deputy Assistant Attorney General Doha Mekki Delivers Remarks for the Annual Dinner of the Committee to Support the Antitrust Laws

Thank you for the kind introduction.

It's a pleasure to be with you this evening. It is especially meaningful to be in the presence of so many thoughtful lawyers who are committed to upholding our antitrust laws and the principles those laws enshrine. Occasions like this one give us reasons to gather, to reflect, to celebrate.

And there is much to celebrate.

Over the last few years, antitrust plaintiffs have won important victories in cases against digital platforms. They've won important concessions from real estate associations, elite private colleges, sports leagues, pharmaceutical companies, pork processors and health insurers that ripped off home buyers, college students and their families, athletes, patients and farmers. They've secured jury verdicts and redress for harmed individuals that continue to break records.

The Justice Department's Antitrust Division has been active too.

Over the last year, a federal court held that Google illegally maintained monopolies in general internet search and related search advertising markets.[1] That case is about access to the information we see and use to make decisions about how we want to live our lives. It was also the federal government's first significant monopolization trial victory in more than two decades. We completed a second major monopolization trial. We also filed four other monopolization cases in the smartphone, live music, real estate and debit network industries. And outside of our Section 2 work, we filed suit to halt competitor information exchanges in the agriculture industry that hurt growers and farmers and raise prices at the grocery store, algorithmic collusion in housing rental markets and unwarranted limits on college athletes' mobility.

Over the last 30 months, we also have stopped illegal mergers in the airline and book publishing industries; obtained criminal convictions against corporations that fixed the wages of school nurses and the prices of generic drugs; stood up a task force to root out corporate monopolization and collusion in healthcare; strengthened interagency cooperation with our federal agencies; and vindicated important legal precedents through more than 30 amicus filings in state and federal courts across the country. Several of these filings have helped win path-clearing legal interpretations, including about refusals to deal and franchise no-poach agreements. We stood up a sustained effort to enforce Section 8 of the Clayton Act. More than 20 companies abandoned mergers in the face of serious competition concerns. We have dusted off long existing but underutilized statutory authorities to protect markets, including the Packers and Stockyards Act and the felony provisions of the Sherman Act. We've secured convictions of more than 60 companies and individuals, secured over $270 million in criminal fines and penalties. We have returned money to the public coffers in procurement collusion and fraud cases. We have withdrawn outdated guidelines that did not provide appropriate guidance to the public. We updated our merger guidelines. Just last week, the wisdom of the 2023 Merger Guidelines was vindicated by a federal judge in Manhattan.[2]

And we have invested in the Antitrust Division itself. We have stood up a Litigation Program, a talented group of first- and second-chair trial lawyers who lead, strategize, and mentor in high-stakes antitrust cases. Since 2022, more than 110 civil prosecutors went to the podium and examined trial witnesses, 55 for the first time. That is just in the civil program. We are training up the next generation of criminal antitrust prosecutors too. We have brought in house more economic and technical expertise, including data scientists, technologists and AI experts. We have secured funding to build for the first time state-of-the-art technology infrastructure to help us investigate, litigate and resolve competition problems across the U.S. economy.

We are busy. And there is more under way.

Our enforcement and policy choices follow painstaking, often yearslong investigations of the facts, reviews of market conditions and careful assessments of the law. They reflect a commitment to studying markets as they are with the best analytical tools we have. They demonstrate a serious commitment to taking care that the laws written by Congress be faithfully executed. This is our constitutional obligation.

Lately, though, I've been more contemplative about why these cases matter. Not just to the administration of the antitrust laws, but in the broader context of antitrust ideals and the Justice Department's unique role in vindicating the rights of the American people. I've reflected more about what's at stake in our antitrust enforcement. Why the principles enshrined in the antitrust laws are worth supporting.

It is in that spirit that I deliver my remarks this evening.

The Supreme Court has long recognized that the value unequivocally laid down by the antitrust laws is competition. At the same time, it has recognized that the second and third order benefits of vibrant, open, and competitive markets accrue to the benefit of rights and liberties of all kinds, as well as the vitality of our democratic institutions.[3] In 1972, Justice Thurgood Marshall, writing for the majority in United States v. Topco, compared the antitrust laws to the Magna Carta, declaring them "as important to the preservation of economic freedom . . . as the Bill of Rights is to the protection of our fundamental personal freedoms."[4]

I don't think Justice Marshall made this comparison lightly.

He understood more than most the importance - and the transformative power - of the rights protected by these documents. After graduating law school in 1933, Marshall followed in the footsteps of his mentor, Charles Hamilton Houston, the first black student elected to the Harvard Law Review, the first general counsel of the NAACP, and the man who pioneered the legal groundwork for direct legal challenges to Jim Crow laws.[5] At the NAACP, Marshall represented people facing the death penalty.[6] He defended the Montgomery Improvement Association, led by a young pastor named Martin Luther King Jr., when it was sued for organizing a bus boycott in response to the arrest of Rosa Parks.[7] He argued dozens of cases before the Supreme Court, including landmark victories in Shelley v. Kraemer, striking down race-based restrictive housing covenants, and Brown v. Board of Education, striking down separate but equal doctrine in public education.[8]

So, why would Justice Marshall draw a link between the Magna Carta, our Constitution and Bill of Rights on the one hand and the antitrust laws on the other hand?

I suspect he, like many of our national heroes before him, understood that preserving freedom and advancing the rights of Americans of all stripes requires us to protect three planks of our liberties: social, political, and economic rights and opportunities. It is not enough to have one. Or two. You need all three. And it may well be that economic liberty is a guarantor and backstop for the other two.

Let me explain.

Broadly speaking, the political economy of our Constitution enshrines the rule of law and protects our social, political and economic liberties and opportunities as citizens. Often enough, our loudest disagreements focus on the first two categories. Perhaps that is not surprising in this country where we have shed blood and fought wars to make real the proposition that all people are created equal, and where we strive every day towards our more perfect union.

But what of economic liberty and economic opportunity?

I believe economic liberty and the American democracy-of-opportunity tradition are critical to the full participation of citizens in our republic. They are as essential to the promise of America as our social and political rights. They are mutually reinforcing.

Professor Eleanor Fox has argued that a thriving democracy, with robust political and social liberties for all, cannot be had without robust economic rights and protections for those rights. Many of our intellectual and national heroes have recognized this as well. Even in the 1960s, figures like Bayard Rustin and Dr. Martin Luther King Jr. recognized that hard-won social and political rights they gained through the Civil Rights Act of 1964 would not be fully realized unless they were backstopped by economic justice, liberty and opportunity.[9]

I won't hide my thesis. I believe the antitrust laws, which reflect core American ideals, have something to say about the democracy-of-opportunity tradition and economic liberty. And I believe the Justice Department plays a unique role in upholding them.

That's what I'd like to spend time discussing this evening.

Our first federal antitrust law was the Sherman Act of 1890. Senator Sherman argued passionately that "monopolies … are inconsistent with our form of government" and that "[i]f we would not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessities of life."

The ideals of his legislation were not new - even in 1890. They trace to a long common law tradition that is older than the Republic itself and dates back at least to the early seventeenth century in a case called Darcy v. Allen, which declared the crown's grant of a monopoly for making playing cards "against the common law."[10] My home state constitution even declares that monopoly is antithetical to the genius of a free state.

The economic opportunities and liberties protected by the Sherman Act - in particular, protections against monopolies - were important to the Founders, too. Jefferson listed a "restriction against monopolies" among the rights that deserved to be enumerated in the Bill of Rights.[11] After all, England's grant of monopolies for different products, including tea, may well have set the American Revolution in motion.[12]

The foundations on which the Sherman Act rests are not limited solely to concern about contractual restraints, property rights, and industrial relations. They also contemplate individual liberty and concern about distribution of power.[13] Why is this concern for economic opportunity and liberty so important? I come back to my thesis: because efforts to secure social and political rights are at risk if they are not backstopped by economic opportunity. And because antitrust plays an important role in our economic liberty and democracy-of-opportunity tradition.

In his 1935 book, Black Reconstruction in America, W.E.B. Du Bois famously argued that a key reason why the Confederacy collapsed - and the institution of slavery with it - was because when Union soldiers arrived in the South, Black Americans, as Du Bois put it, "left the plantation" and led a "general strike."[14] They exercised the most basic economic right that comes with freedom - the freedom to make decisions about one's own labor.[15] The exercise of this economic liberty devastated the Southern economy, and, as Du Bois put it, "furnished . . . 200,000 Federal soldiers."[16] This is no doubt resonant for all of us in the room who have helped advance labor competition jurisprudence and protected the ability of organized workers to act collectively without fear of antitrust liability.

After the Civil War, Congress passed a law authorizing the Attorney General to supervise and control all government litigation. In 1870, the Attorney General established the Justice Department. Of the many challenges facing a new Justice Department and its first Attorney General, Amos Akerman, none was more prominent than ensuring civil and voting rights for Black Americans during Reconstruction.

When Congress passed the Sherman Act two decades later, it was in the face of dominant trusts - including Standard Oil - and increasing consolidation that threatened America. The Sherman Act rested on the constitutional power of our Congress not only to regulate interstate commerce but to protect all citizens' economic opportunities and liberties. And so, the Justice Department, in part through its antitrust powers, took on the role of upholder and guarantor of economic opportunity and liberty for all Americans, as it has done now for more than a century.

Our history teaches that when we do not protect economic opportunity - when we allow monopolies to go unchecked - other rights suffer or disappear entirely. As Du Bois wrote, this is part of why Reconstruction failed: "without land and without vocation, the Negro voter could not gain that economic independence which would protect his vote."[17] Instead, freed men were forced into tenant farming and sharecropping. A century of Jim Crow followed. For all of us who have litigated cases to protect chicken growers from the abuses of big corporate processors, the tyranny of the Tournament System, and other forbidden practices under the Packers & Stockyards Act, we know the legacy of these practices today transcends race and has not disappeared but simply evolved.

Black Americans eventually confronted Jim Crow with boycotts, withdrawing not just their labor but their economic support for the institutions of segregation. When businesses on the receiving end of these boycotts sued, invoking of all things the antitrust laws, the Supreme Court protected the economic liberty "to bring about political, social, and economic change" through peaceful protest, including boycotts. [18] From Rosa Parks to Dr. Martin Luther King, Jr. to John Lewis, that is exactly what they did. They asserted and used their right to economic independence to protect the franchise - the right to vote - among many other rights.

Less well known is the fact that civil rights leaders have long spoken out against monopolies and in favor of protecting economic rights and liberties.

Frederick Douglass called for laws limiting "[e]states too large for the good of society"[19] and criticized the "accumulation [of wealth] in the hands of a few" as "the readiest means by which liberty is overthrown."[20] His opposition to these ideas was expressly linked to his opposition to slavery.[21] His call for civil rights was expressly linked to a call for economic rights. The right to own property. The right to own your own labor. As Douglass wrote, "What is freedom? It is the right to choose one's own employment."[22] Without that right "liberty is a mockery."[23]

When Martin Luther King Jr. led the March on Washington in 1963, where he delivered his famous "I Have a Dream" speech, the march was called the March on Washington for Jobs and Freedom. His dream was one of social, political, and economic freedom, which he recognized as inseparable and vital to full participation of citizens in our republic. In the years that followed, he called for uniting "social and economic justice into a single package of freedom" for all Americans.[24] In his final book, Where Do We Go From Here: Chaos or Community, he also addressed the market operation of our economy.

Time and time again in our history, we have recognized that economic liberty and the democracy-of-opportunity tradition support human flourishing; that we cannot have social and political liberty without economic liberty. When we failed to protect all these forms of liberty, we often failed to protect any of them.

What does this have to do with antitrust?

I think the antitrust laws are, as Justice Marshall recognized, an important tool for preserving and defending economic liberty and opportunity, and thus reinforcing our social and political rights, too. The antitrust laws are therefore among our most important civil rights laws.

Perhaps it is no surprise, then, that antitrust law's biggest champions have also been champions of political and social rights.

Senator John Sherman, among the very first Republicans elected to Congress,[25] was an opponent of slavery[26] and a supporter of the 13th, 14th and 15th Amendments.[27] Senator George Edmunds, the primary drafter of the text of the Sherman Act, also drafted and oversaw passage of the Ku Klux Klan Act.[28] These men recognized the Sherman Act as an extension of this work. For example, Senator Sherman argued that his law against trusts was necessary to preserve "industrial liberty," which "lies at the foundation of the equality of all rights and privileges."[29]

Justice Harlan, the lone dissenter in Plessy v. Ferguson, wrote in Standard Oil (1911): "All who recall the condition of the country in 1890," as Justice Harlan surely did, "will remember . . . [t]he nation had been rid of human slavery . . . but the conviction was universal that the country was in real danger from . . . the slavery that would result from aggregations of capital in the hands of a few individuals and corporations."[30]

Emanual Celler, who sponsored the Celler-Kefauver Anti-Merger Act of 1950 to strengthen merger enforcement, introduced the Civil Rights Act of 1964 in the House.[31] Senator Hart, of the Hart-Scott-Rodino Act, was a floor sponsor of the Voting Rights Act of 1965.[32] Senator Scott was a strong supporter of the Voting Rights Act as well as the Civil Rights Act of 1964 and a number of other civil rights laws.[33] Representative Peter Rodino wrote the majority report for the Civil Rights Act of 1964 - as well as other civil rights laws - and authored Title VII of the Civil Rights Act.[34] These men recognized the antitrust laws as an extension of this work, too. And so, the original preamble to the Hart-Scott-Rodino Act recognized "competitive enterprise as the best way to protect social, political, and economic freedom."[35]

At the same time, the biggest champions of civil rights have also been champions of the antitrust laws.

The very first Supreme Court case interpreting the scope of the 14th Amendment's protection for individual liberty involved a challenge to a Louisiana law granting certain butchers a monopoly over their trade.[36]

Before the Civil Rights Act of 1964, Black Americans used the antitrust laws to challenge segregation. For example, in the early 1960s, groups like the Cook County Physicians' Association used the Sherman Act to successfully challenge what they called "a tacit conspiracy to exclude Negro physicians from staff appointments."[37] After the settlement in that case, the number of black doctors involved in residency programs in Chicago tripled.[38] The number of private hospitals willing to treat black patients increased too.[39]

Curt Flood, a famous baseball player who was a champion of civil rights in his own right, used the antitrust laws to challenge baseball's reserve system.[40] Jackie Robinson testified on Flood's behalf at trial.[41] Flood's lawsuit failed, but his fight to end the reserve system was ultimately successful and Flood earned the Jackie Robinson Award from the NAACP in 1992 for his civil rights advocacy, including his antitrust lawsuit.[42]

In 1961, Martin Luther King Jr. gave a lecture on the case for civil rights legislation at Southern Baptist Theological Seminary in Louisville, Kentucky. During the lecture, he discussed the "distinction between private property that is purely private and private property that is privately owned but publicly used."[43] He argued it was appropriate to impose limits on business' ability to deny access to property that is privately owned but publicly used, citing the Sherman Act as an example of a law that, in some cases, limits businesses' discretion to deny access.[44]

This colloquy between proponents of antitrust and civil rights is not a coincidence. Time and time again, champions of our civil rights laws looked to the antitrust laws to increase the economic opportunity and liberty of ordinary Americans while decreasing the power of monopolies. I think it reflects an understanding, maybe even a consensus, about the mutually reinforcing nature of social, political and economic opportunity for all Americans. And the centrality of antitrust to promote open, vibrant markets that are conducive to work, investment and innovation. On this telling, we should think harder about calls to subordinate our antitrust and antimonopoly laws purportedly in service of some other social and political values.

At some point, the bonds between those fighting for economic rights and liberties and those fighting for social and political rights weakened. Antitrust earned the reputation of being esoteric. Too technocratic for most and lacking participation from those who need it most. For years, many pushed the idea that it requires specialized degrees or expensive expertise. I think this loses sight of antitrust's origin story. I also think it underestimates the potential of antitrust and the antimonopoly tradition to help protect our most vital liberties - even if antitrust strictly speaking is not a panacea.

Antitrust is about more than greyed out triangles and regression analyses. People are the objects of the law's solicitude. In our experience, when we put the American people at the center of our stories, when we are faithful to people's real experiences of markets and market realities, we have tended to see success. These successes show the potential of antitrust to help people. To help champion important economic rights and liberties. To help strengthen economic independence.

Let me give you some examples.

Labor. Antitrust can be a tool for prying open economic opportunity - especially in labor markets.Take, for example, the story of Leinani Deslandes, a woman who took on McDonald's for shutting her out of a higher paying job. Ms. Deslandes started working at McDonald's as a fry cook earning $7 an hour. Then, she worked her way up and trained for a management position. But after her employer found out that she was pregnant, it cancelled the training.[45] When Ms. Deslandes sought a management job at another McDonald's franchise, she couldn't take the job because McDonald's and its franchisees had agreed that they wouldn't hire each other's workers - a classic no-poach agreement. Ms. Deslandes took her case to court, represented by a private plaintiff's lawyer. The Antitrust Division filed an amicus brief supporting Ms. Deslandes, and, last year, the Seventh Circuit Court of Appeals said that what McDonald's did may violate the antitrust laws and allowed Ms. Deslandes to proceed with her lawsuit. Agreements like these no-poach agreements between employers, and non-compete clauses in employees' contracts, deprive American workers of their economic freedom by closing off their alternative employment options and restricting their ability to freely change their jobs.

Housing. Home ownership is another example. In the 19th century, Frederick Douglass called for the economic dispersion of land monopolies. "With land limitation," he said, "[s]lavery would be impossible."[46] He called for "the abrogation of land monopolies" and for opportunities for all people to have a part of the land of this country.[47] But today, when you try to buy or sell real estate, most people rely on real estate agents who are members of associations that set rules that allow it to wield extraordinary power over the agents, and, ultimately, home buyers.

Last year, in a private antitrust case against the National Association of Realtors, the Court found that there was a conspiracy to artificially inflate commissions, which meant higher prices for home buyers and less money for home sellers.^[48] The jury decided that these practices had cost homeowners in Missouri alone $1.8 billion.^[49] Similar lawsuits are now being brought across the country challenging these practices and other rules that real estate associations use to block competition and harm consumers.

The Justice Department has filed its own legal challenges to the rules governing home buying and has participated as amicus in real estate association cases across the country.

Airlines. Another example is the ability to travel. The importance of guaranteeing the right to travel across state lines was a key part of the Civil Rights Act of 1964. Today, however, interstate and international travel is dominated by an airline oligopoly that has consolidated rapidly for decades. Recently, the Antitrust Division reversed that trend. For example, we successfully blocked a de facto merger between American Airlines and JetBlue, which tried to merge with Spirit at the same time. The Justice Department argued that, based on the facts at hand, each merger would have illegally consolidated the airline industry.[50] In the latter case, the district court recognized that Spirit's lower fares and unbundled fare options - which were mimicked by its larger rivals - were meaningful to consumers and constrained price hikes. In the absence of consumer choice, it would be harder for a family of four to take that hard-earned vacation or a college student to visit a loved one.

Digital Platforms. Finally, digital platforms. Today, a few powerful digital gatekeepers exert extraordinary influence over our lives - not just in the massive amounts of data they collect about us, but the way they control our access to information and people. When these gatekeepers face less competition, we have less power over whose voices these platforms silence and amplify. Earlier this year, a court held that one of these digital gatekeepers - Google - violated the antitrust laws in markets for general search and search advertising. My hope is this victory will pave the way for more competition, and sustained opportunities to innovate, invest and reap the rewards of markets unfettered by monopoly.

Let me stop here to recognize that many of the cases I just mentioned were brought and won by private plaintiff's lawyers, many of whom are in this room, and who sought redress for victims of antitrust violations like Ms. Deslandes. These cases are an extraordinarily important complement to the Justice Department's own efforts to promote competition and protect Americans' economic opportunities. I think they also offer important lessons for antitrust plaintiffs of all kinds.

Speaking from experience, one of the biggest challenges - and opportunities - is explaining how our cases impact people. This is a place where the plaintiffs' bar exceled this year. By necessity, you give voice to individuals like Ms. Deslandes, you tell their stories, and in doing so you help judges, juries and the public appreciate that anticompetitive conduct has real-world effects. You can show that lack of competition hurts real people. Losing a promotion. Losing the opportunity to buy a house. Losing out on the ability to start a business. Losing out on the ability to get financial aid at a dream school. These are real harms that were faced by antitrust plaintiffs. Their stories are important. They matter.

Over the last three years, the Antitrust Division has made extraordinary investments in making our work more accessible to people. We have worked harder to get out of Washington to hear and elevate different stories - both as part of our casework and our advocacy. Just yesterday, I had the privilege of hearing from community pharmacists in Columbus, Ohio who have struggled to run their businesses and serve their communities because of PBM abuses. And we have focused on becoming better storytellers in our trial presentation. You can see it in how we have explained what book advances mean to authors and the ability of people to afford the necessities of life.

Another area where we can learn from the plaintiffs' bar is respecting the importance of juries. While our criminal program regularly tries antitrust cases to juries, our civil program has not for many, many years. We have had the good fortune - and opportunity to learn - from the exceptional jurists who have heard our cases. But we owe it to the public to be comfortable giving We the People the power to make decisions about how government is wielding the authority entrusted to it. To let citizens make decisions about citizens. The division has attempted to reverse this trend, and I expect those efforts will continue.

At the same time, I think there are important lessons that the plaintiffs' antitrust bar can take from government enforcers. Take remedies, for example. Too often, plaintiff's lawyers bring important cases only to resolve them with settlements that allow alleged wrongdoers to pay a fine without an injunction or remedy to restore lost competition. Candidly, I am encouraged that this approach has faced increasing questions from thoughtful judges who have pushed back against these kinds of settlements.[51]

In closing, I want to congratulate all of you on pathbreaking victories this year. The fight for economic liberty and our democracy-of-opportunity tradition touches every aspect of American life - especially for those most vulnerable to abuses of monopoly power, collusion by corporations and other violations of the antitrust laws.

I also will leave you with a parting thought.

The origins of democracy in this country - including the right to vote - began with the landed elite and their property interests. And since then, the interplay between economic liberty and meaningful civil and social liberty has not waned. We see time and time again in our history the role that economic opportunity plays in human flourishing, and the idea that we cannot have social, civic and political progress without economic liberty and opportunity.

For all of us working to uphold these opportunities, we should recognize that, much like our broader set of civil rights, economic opportunity and liberty are not self-executing or self-sustaining. They must be championed and reaffirmed continuously. At the same time, our economic liberties and the democracy-of-opportunity tradition do not exist in isolation. History teaches that the social, political, and economic dimensions of liberty are inseparable and must be defended together.

That is good news.

And it's an invitation.

It means that antitrust lawyers can contribute to a bigger effort to protect the rights, opportunities, and liberties of all Americans.

We can, we should, and we must work together to advance competition and antitrust's democracy-of-opportunity tradition because it is, as Justice Marshall said, our economic Bill of Rights. And so it is, it has been, and it will be an indispensable part of the broader struggle for liberty and opportunity.

Thank you.

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