Attorney General Loretta E. Lynch Delivers Keynote Luncheon Address During the 64th Annual American Bar Association Antitrust Law Spring Meeting
Washington, DC United States ~ Wednesday, April 6, 2016
Remarks as prepared for delivery
Good afternoon and thank you for that warm welcome. Thank you, Roxann [Henry], for your kind introduction – and for your outstanding leadership of the ABA’s Section of Antitrust Law. I also want to acknowledge our foreign and domestic enforcement partners who have traveled from around the world to join us. Your partnership is essential to the creation of a more equitable world and I am grateful for your work.
It’s a pleasure to be here today and it’s an honor to have an opportunity to address this distinguished group of judges, lawyers, public servants and scholars. For decades, this section of the American Bar Association has served as the premier association of antitrust and consumer protection experts from around the world, giving practitioners a forum for the exchange of ideas; a platform for the advocacy of sound policy; and a network for professional development. In these and in so many other ways, you have always stood at the forefront of the Bar’s ongoing efforts to guarantee fair competition; to encourage transparent business practices; and, above all, to secure economic justice.
That work is vital to the strength of our democracy. Free societies require free markets – and markets where businesses can form cartels, create monopolies and manipulate prices without any kind of oversight can hardly be called free. As Senator John Sherman said in March of 1890 when he called for the passage of a bill that still bears his name, “If we will not endure a king as a political power, then we should not endure a king over the production, transportation and sale of any of the necessaries of life.” The Sherman Antitrust Act represented an enormous step forward in America’s ongoing struggle to widen opportunity and broaden prosperity. And the fact that it came at a time when our fledgling nation was defining itself in the eyes of its citizens and the world is telling. It is clear that, throughout the flowering of our economy, our choices have always been steeped in fundamental fairness. The Sherman Act was also a landmark in the history of the Department of Justice, adding the maintenance of a level economic playing field to our fundamental mission of upholding the law and seeking justice. And the principle that it embodied – that the people of this country deserve the freedom to navigate their own path and chart their own future – still stands at the core of our work.
Today, the Department of Justice is as committed to fair, open and competitive markets as it has ever been. Under the tireless leadership of Assistant Attorney General [Bill] Baer – who I look forward to working with even more closely in the coming months – the department’s Antitrust Division continues to vigilantly oversee markets; to thoroughly review mergers and acquisitions; and, when necessary, to vigorously act against anticompetitive behavior – with tremendous results. Just look at our recent enforcement actions. We convinced the Supreme Court that there was no need to review the Second Circuit’s decision that Apple had conspired with publishers to raise e-book prices, unlocking $400 million in private damages to consumers – on top of the $166 million already paid by the publishers. We exposed a scheme between Citicorp, JPMorgan Chase, Barclays and the Royal Bank of Scotland and others to rig the foreign currency exchange spot market, leading to fines totaling $2.5 billion – the largest set of antitrust fines the department has ever obtained. We won key divestitures in the American Airlines-US Airways merger that have expanded low-cost carriers’ access to major airports and we are in the process of challenging United Airlines’ slot monopoly at Newark International Airport. We prompted Comcast to abandon its merger with Time Warner, averting the creation of an unavoidable gatekeeper to Internet-based services that rely on high-speed broadband connections. And we successfully challenged Electrolux’s acquisition of General Electric’s appliance division, preserving competition in a major consumer goods sector.
Cases like Comcast and Electrolux point to the greatest challenge confronting the Antitrust Division, as well as our partners at the Federal Trade Commission: an unprecedented swell of mergers coursing through the U.S. economy. It isn’t just the number of proposed deals that makes this a unique moment in antitrust enforcement; it’s their size and their complexity. To give you a sense of the magnitude of these combinations, consider that in fiscal year 2015, the number of proposed mergers valued at more than $10 billion was 67 – more than double the number from the year before. This represents a remarkable shift toward consolidation and it presents unique challenges to federal enforcers in our work to maintain markets that serve not just top executives and majority shareholders, but every American. Because while our actions may play out in the rarefied air of corporate boardrooms, law firm conference rooms and exalted courts, they truly live in the homes of everyday Americans – hardworking people who sit down every month to pay their bills and make the financial decisions that will not just keep their families afloat but will allow them to prosper. It is for them that we do this work.
Consolidation among major competitors – especially in already concentrated industries – raises serious concerns about higher prices, lower output, diminished quality and flagging innovation – concerns that the Department of Justice takes extremely seriously. Of course we want and need, economic activity to drive the engine of this great country. We want our companies to sustain and grow their intrinsic value. But we will not allow management to increase investor value at the expense of the individual consumer. Unfortunately, a number of the proposed mergers that we have recently reviewed plainly ran the risk of distorting markets and harming the public interest. Some of these deals were so obviously anticompetitive that they were doomed from their inception. Proposals like movie advertiser Screenvision’s merger with NCM or the Los Angeles Times’ recent bid for the Orange County Register would have resulted in outright monopolies. Other plans – like the suggested mergers between Comcast and Time Warner, AT&T and T-Mobile and Chicken of the Sea and Bumble Bee – were deeply problematic. To even begin the merger process in these instances was little more than a waste of corporate and taxpayer dollars. And I am proud to say that in each instance, the Justice Department successfully stopped these deals. Even the threat of an antitrust lawsuit has now become a powerful deterrent to anticompetitive behavior, as we’ve seen in cases like the Comcast and Time Warner deal, because we have consistently demonstrated that our reservations are backed by facts and arguments that are rock-solid and ready for trial.
Victories across a wide range of industries make clear that if our analysis leads us to conclude that a merger will restrict competition, we will not hesitate to intervene; we will not shrink from our responsibilities; and we will not waver one iota in our duty to the American people. In some cases, we are able to find solutions outside of court – in Anheuser-Busch InBev’s attempt to buy Grupo Modelo, which would have resulted in the combination of the largest and third-largest brewers in the United States, we were able to reach a settlement in which both parties agreed to divest all of Modelo’s American holdings to a fully independent competitor, resulting in stronger competition in the U.S. beer market, benefits for consumers and a positive outcome for the American economy. In cases like this one, if companies can present a detailed and workable plan that eliminates the risk of market dominance, we’ll work with them to find the way forward.
What we will not accept is the idea that the mere act of divestiture is enough – that if companies simply spin off a few assets, we will withdraw our objections and the merger can proceed. That simply isn’t true. The Department of Justice is not interested in settling for the sake of settling; we are willing to settle only when we have a high degree of confidence that an agreement will preserve competition and protect consumers in every market that a merger affects. The more complex the deal – and the more markets it potentially endangers – the greater our skepticism that divestiture will safeguard competition. And if we believe that no good solution exists, then we will prosecute our suits to the very end.
It is for this precise reason that earlier today, the Department of Justice announced that we have sued to block the merger between Halliburton and Baker Hughes – a merger valued at nearly $35 billion that would bring together the second and third largest oilfield service companies in the world. If completed, this deal would eliminate vital competition in more than 20 markets and hamper America’s efforts to become energy independent – a setback that would harm not only our economic well-being, but also our national security. Put simply: it is a bad deal. Halliburton has proposed divesting an assortment of assets, but its plan falls well short of the preservation of open economic competition that our nation’s antitrust laws require. There should be no doubt that we are committed to pursuing this case to a just conclusion that will serve the interests of the American people.
Ultimately, that’s what our work is about. That’s the principle that gave rise to the Sherman Act and the concept that undergirds all antitrust laws: the idea that government exists to serve the public. All of us in this room have a responsibility to stand up for people where they cannot stand up for themselves. We have a duty to defend the institutions that make this country strong: businesses that serve the consumer first; exchanges that are transparent and free of manipulation; and markets that allow for competition that is fair, vigorous, vibrant and honest. And we have a sacred obligation to protect the opportunities that make this nation what it is: a nation where every person has a meaningful chance to succeed and to thrive.
I am extremely proud of all that the Department of Justice – and this entire administration – has done to meet those responsibilities over the course of the last seven years. And I am profoundly grateful for your commitment to that effort. All of you – whether you’re a federal employee of the United States; a lawyer in the private sector helping to ensure compliance; a researcher working to advance our understanding of laws and markets; a state or local law enforcement official; or an international enforcement leader committed to the principles we are discussing today – all of you are making a significant and lasting contribution to a stronger and more just society. I want to thank you for your efforts, for your dedication and for your passion. I ask for your continued partnership as we continue this work. And I look forward to all that we will accomplish – together – on behalf of the people we serve. Thank you.