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From Antitrust Law Daily, February 16, 2018

Antitrust Division chief discusses agency’s actions, initiatives in speech to federalists

By E. Darius Sturmer, J.D.

Associate Attorney General Rachel Brand, head of the Department of Justice Antitrust Division, Brand highlighted the agency’s accomplishments in its first year under Attorney General Jeff Sessions in her address yesterday. Speaking before the Washington D.C. chapter of the Federalist Society, Brand began by offering condolences and prayers to the Parkland, Florida, community on the heels of its school shooting earlier in the week, and she reiterated the administration’s position that the agency’s study of the intersection of mental health and criminality would prevent mass shootings from happening in the future. She offered assurances that the Justice Department was focused on keeping the nation safe "both from foreign terrorist threats and from violent crime in America’s cities," on tackling the opioid crisis, and on promoting the rule of law.

Turning to the Antitrust Division’s efforts in this latter direction, Brand emphasized that litigation on behalf of the government amounts to litigating in the public interest. As such, she said, Justice Department lawyers "have to think about whether the outcome they are seeking is appropriate, not only whether it’s achievable." Moreover, the rule of law affects how the agency settles litigation, she said, pointing out that the government was in such cases "negotiating with the taxpayer’s money."

Cy pres distribution. Brand complained that some settlements in the past have included cy pres clauses that have funneled "billions of dollars" to non-profit organizations or interest groups ranging from universities to community redevelopment groups instead of to "victims of the conduct at issue in the case." She lauded Sessions’ decision last year to prohibit the Justice Department from including "so-called ‘third-party payments’ in settlements."

Brand said that third-party payments raised "serious legal, policy, and ethical concerns." Even if lawful, she postulated, "they create[d] the appearance of political favoritism and cronyism." The Justice Department, she declared, "should not use its settlement authority to subsidize favored causes or political allies;" since Sessions’ memorandum last June, "it no longer does."

Consent decrees. Brand added that the agency is turning away from its "almost reflexive" use of consent decrees to settle affirmative litigation that could have been resolved, for purposes of the agency’s enforcement objective, through an out-of-court settlement agreement. A consent decree, she remarked, "puts a court in the position of managing the day-to-day operations of the entity under the decree," sometimes "for many years," which is "not a core judicial function." Those governing state or local government agencies "also raise federalism questions," she said. However, the tool would "continue to be necessary in some cases, particularly where the court’s ongoing supervision is the only way to ensure compliance with the settlement’s terms," she noted.

Injunctive relief. Brand discussed the challenges of defending multiple lawsuits challenging the same governmental action, pointing out that plaintiffs seeking preliminary injunctions against the enforcement of a new policy need only win one of the cases to secure a nationwide injunction that would shut a program down. Brand questioned whether nationwide injunctions were consistent with Article III of the Constitution, since they granted relief to parties not before that court, and she reported that the agency is challenging several at present.

The Associate Attorney General then trumpeted the current President’s appointments of "brilliant, qualified judges who we know will respect the law and the limits of the judicial function."

Free speech initiative. Brand also discussed Attorney General Sessions’ recent launch of an initiative to promote free speech on college campuses. She remarked that "too many colleges find it more important for students to be comfortable and affirmed" and consequently restrict students’ speech or enable students to silence speech they find disagreeable through policy or inaction. "Some colleges actively restrict speech," she maintained, by means such as a "speech code that bans ‘offensive’ speech, which administrators can use to ban whatever they don’t like." Others impose "so many bureaucratic barriers to speech … that it is almost impossible for speakers to reach an audience" or "effectively codif[y] a heckler’s veto by singling out controversial speakers for stricter rules." Brand noted that the agency has filed three Statements of Interest in support of students who have sued public universities for violating their First Amendment rights, and asked attendees to help identify similar cases in which the government could become involved.

Class actions. Another type of case in which the Justice Department sought be become involved, Associate Attorney General Brand said, was litigation brought under the Class Action Fairness Act (CAFA). Whereas the statute requires that proposed class action settlements be served on the Attorney General for a review as to their fairness, the Attorney General has participated in only two cases, more than ten years ago. She relayed that the agency had begun to fix the mailroom and review processes to be in a better position to review settlements.

Regulatory reform. Finally, Brand described regulatory reform as one of the Justice Department’s top policy priorities, decrying "the impact of unnecessary regulations on individuals and the economy." She challenged the agency’s past use of guidance documents as a substitute for "notice and comment" rulemaking, remarking that federal employees in Washington "cannot possibly fully understand the potential effects of a proposed regulation on the public." The notice-and-comment process was designed to solve this problem, she said. She noted that Attorney General Sessions had recently prohibited the Justice Department from using guidance documents in lieu of the process, voiced her hope that other agencies would follow that lead, and boasted that she had extended the principle by banning Justice Department litigators from using other agencies’ guidance documents to establish violations of law in its affirmative civil enforcement actions.

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