Quiero saber acerca de...

Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices
jbell on DSKJLSW7X2PROD with NOTICES

modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest;
and B the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.

15 U.S.C. 16e1A & B. In considering these statutory factors, the Courts inquiry is necessarily a limited one as the government is entitled to broad discretion to settle with the defendant within the reaches of the public interest. United States v.
Microsoft Corp., 56 F.3d 1448, 1461
D.C. Cir. 1995; United States v. U.S.
Airways Grp., Inc., 38 F. Supp. 3d 69, 75 D.D.C. 2014 explaining that the courts inquiry is limited in Tunney Act settlements; United States v. InBev N.V./S.A., No. 081965 JR, 2009 U.S.
Dist. LEXIS 84787, at 3 D.D.C. Aug.
11, 2009 noting that a courts review of a consent judgment is limited and only inquires into whether the governments determination that the proposed remedies will cure the antitrust violations alleged in the complaint was reasonable, and whether the mechanism to enforce the final judgment are clear and manageable.
As the U.S. Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations in the governments complaint, whether the proposed Final Judgment is sufficiently clear, whether its enforcement mechanisms are sufficient, and whether it may positively harm third parties. See Microsoft, 56
F.3d at 145862. With respect to the adequacy of the relief secured by the proposed Final Judgment, a court may not to make de novo determination of facts and issues. United States v. W.
Elec. Co., 993 F.2d 1572, 1577 D.C. Cir.
1993 quotation marks omitted; see also Microsoft, 56 F.3d at 146062;
United States v. Alcoa, Inc., 152 F.
Supp. 2d 37, 40 D.D.C. 2001; United States v. Enova Corp., 107 F. Supp. 2d 10, 16 D.D.C. 2000; InBev, 2009 U.S.
Dist. LEXIS 84787, at 3. Instead, the balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. W. Elec. Co., 993

VerDate Sep<11>2014

16:36 Jun 07, 2021

Jkt 253001

F.2d at 1577 quotation marks omitted.
The court should bear in mind the flexibility of the public interest inquiry:
The courts function is not to determine whether the resulting array of rights and liabilities is one that will best serve society, but only to confirm that the resulting settlement is within the reaches of the public interest.
Microsoft, 56 F.3d at 1460 quotation marks omitted. More demanding requirements would have enormous practical consequences for the governments ability to negotiate future settlements, contrary to congressional intent. Id. at 1456. The Tunney Act was not intended to create a disincentive to the use of the consent decree. Id.
The United States predictions about the efficacy of the remedy are to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at 1461
recognizing courts should give due respect to the Justice Departments . . .
view of the nature of its case; United States v. Iron Mountain, Inc., 217 F.
Supp. 3d 146, 15253 D.D.C. 2016 In evaluating objections to settlement agreements under the Tunney Act, a court must be mindful that the government need not prove that the settlements will perfectly remedy the alleged antitrust harms; it need only provide a factual basis for concluding that the settlements are reasonably adequate remedies for the alleged harms. internal citations omitted;
United States v. Republic Servs., Inc., 723 F. Supp. 2d 157, 160 D.D.C. 2010
noting the deferential review to which the governments proposed remedy is accorded; United States v. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1, 6 D.D.C. 2003 A district court must accord due respect to the governments prediction as to the effect of proposed remedies, its perception of the market structure, and its view of the nature of the case. The ultimate question is whether the remedies obtained by the Final Judgment are so inconsonant with the allegations charged as to fall outside of the reaches of the public interest.
Microsoft, 56 F.3d at 1461 quoting W.
Elec. Co., 900 F.2d at 309.
Moreover, the Courts role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its complaint, and does not authorize the Court to construct its own hypothetical case and then evaluate the decree against that case. Microsoft, 56
F.3d at 1459; see also U.S. Airways, 38
F. Supp. 3d at 75 noting that the court must simply determine whether there is a factual foundation for the governments decisions such that its
PO 00000

Frm 00093

Fmt 4703

Sfmt 4703

30493

conclusions regarding the proposed settlements are reasonable; InBev, 2009
U.S. Dist. LEXIS 84787, at 20 the public interest is not to be measured by comparing the violations alleged in the complaint against those the court believes could have, or even should have, been alleged. Because the courts authority to review the decree depends entirely on the governments exercising its prosecutorial discretion by bringing a case in the first place, it follows that the court is only authorized to review the decree itself, and not to effectively redraft the complaint to inquire into other matters that the United States did not pursue.
Microsoft, 56 F.3d at 145960.
In its 2004 amendments to the APPA, Congress made clear its intent to preserve the practical benefits of using consent judgments proposed by the United States in antitrust enforcement, Public Law. 108237 221, and added the unambiguous instruction that nothing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene. 15 U.S.C. 16e2; see also U.S. Airways, 38 F. Supp. 3d at 76
indicating that a court is not required to hold an evidentiary hearing or to permit intervenors as part of its review under the Tunney Act. This language explicitly wrote into the statute what Congress intended when it first enacted the Tunney Act in 1974. As Senator Tunney explained: the court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process. 119 Cong. Rec. 24,598 1973
statement of Sen. Tunney. A court can make its public interest determination based on the competitive impact statement and response to public comments alone. U.S. Airways, 38 F.
Supp. 3d at 76 citing Enova Corp., 107
F. Supp. 2d at 17.
VIII. Determinative Documents There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Dated: June 1, 2021.
Respectfully submitted, lllllllllllllllllllll Jill Ptacek, U.S. Department of Justice Antitrust Division, Transportation, Energy and Agriculture Section, 450 Fifth Street NW, Suite 8000,
E:FRFM08JNN1.SGM

08JNN1