Assistant Attorney General Jonathan Kanter Delivers Remarks at the American Economic Liberties Project 2024 Antimonopoly Summit

Remarks as Prepared for Delivery

Good morning, everyone. My name is Jonathan Kanter, and I represent the people of the United States of America.

I am deeply honored to do that work with hundreds of incredible and committed prosecutors and public servants at the Antitrust Division. And I am honored to be here with you today. My congratulations to American Economic Liberties Project (AELP) for an amazing and important gathering.

I would like to talk today about what it means to be the people’s lawyer. In the past, the Antitrust Division was sometimes defined by what it did not do or by which parts of the law it had decided not to enforce. Today’s Antitrust Division defines itself based on the actions it takes to enforce the law, on behalf of the American people when supported by the facts and the law.

Proper enforcement of the antitrust laws makes a difference in the lives of people across the country. People struggling to afford groceries, make rent and get meaningful employment depend on antitrust enforcement to protect their interests.

So that’s what we have been doing. In the last few years, we have built an unprecedented record of action on behalf of the American people.

Our record runs the gamut from merger challenges to major monopolization cases, to criminal resolutions, amicus filings and board interlocks. In just the last two and a half years, we have taken more than 150 significant actions on behalf of the American people.

Statements like our merger guidelines shape our thinking and they provide transparency to the public. That’s important. But the measure of the success of policy development is whether our frameworks lead to results for our clients.

Preventing Mergers that Risk Lessening Competition

To see those results, you need look no further than the 20 plus mergers abandoned in response to division concerns in the last two and a half years.

Our merger enforcement has also put a stop to consolidation that was making our supply chain more and more brittle by the year. Shippers CIMC and Maersk abandoned their anticompetitive merger near the conclusion of the Division’s investigation,[1] as did Cargotec and Konecranes.[2]

And we prevented consolidation from hollowing out the construction industry, forcing the abandonment of the Tenaris/Benteler steel pipes merger,[3] the Verzatec/Crane wall panel merger[4] and the TopBuild/SPI insulation merger.[5]

The pandemic revealed how our nation’s resiliency depends on competition in the supply chain and in construction materials. We took these actions to address the trends toward concentration in those industries.

Each and every one of these cases matters to the people we represent. When our investigation caused Fresh Express to abandon its plans to buy Dole’s packaged salad business,[6] it helped to preserve the affordability of a household staple for the 85% of American households that buy salads at the grocery store. Victories like that keep prices from going up at the checkout counter.

There are too many more to list. We forced abandonments in another 14 transactions that threatened competition involving tens of billions of dollars in commerce across a broad range of markets.

Of course, we cannot deter or force the abandonment of anticompetitive mergers if we are not willing and able to litigate and win in court. Our litigators, economists and other experts have amazed me. We have won our last three civil trials, going back to the precedent-setting Penguin case protecting competition in the market for authors’ labor.[7] This is not just about dollars and cents. It is about the currency of ideas that authors develop in their writing.

The JetBlue/American case alone restored competition in markets impacting 32 million air travelers.[8]

And in the JetBlue/Spirit challenge, we blocked an airline merger in court for the first time under the Clayton Act ever after decades of consolidation in the industry.[9]

The judge credited the Antitrust Division with “speaking for consumers who otherwise would have no voice.”[10] The Judge emphasized the importance of preserving competition for families trying to vacation on a budget and college students trying to get home for the holidays. Speaking for the people is at heart of our mission and how we represent our clients.

Civil Conduct Enforcement that Protects Consumers, Workers, Farmers and Innovators

Advocating for the American people also involves civil actions protecting workers and producers like farmers and ranchers have been so important.

When we secured a consent decree from Cargill and other poultry processors, we put a stop to a long-running conspiracy that suppressed wages and benefits for poultry plant workers.[11] When we stopped Koch Foods from imposing unfair termination penalties on chicken growers, we restored farmers’ ability to earn a living how they choose.[12]

What better reflects the balance of power in our economy than whether dominant corporations determine how farmers bring their goods to market or whether the farmers have that freedom? Our law enforcement actions are protecting America’s farmers.

The power imbalance in our economy is particularly stark in the digital markets where more and more of our social, democratic and business lives play out. Our actions to protect competition in digital markets are addressing this problem.

In March, we sued Apple for monopolizing smartphones by making the features on iPhones less innovative and connective than they should be.[13] The law does not permit hobbling innovation in a digital ecosystem just to protect your monopoly power, so we took action.

And over the last year, we completed the most historic monopolization trial in generations, challenging Google’s exclusionary conduct to protect its monopolies in search and search advertising.[14] Our team expertly litigated one of the most significant antitrust monopolization cases in decades.

As we bring these monopolization cases, we are building at the Antitrust Division the most experienced and capable Section 2 litigation group that has existed in nearly 100 years. The collection of skill and know-how we are assembling sends a powerful message to America’s monopolists: if you break the law, you will face a formidable opponent in court.

Unwinding Interlocking Directorates Between Competitors

When businesses know we stand to capably enforce the law, they follow it. For every case we bring, there are five or 10 or 50 we won’t have to as businesses learn to take the law seriously.

Our Section 8 work is a great example. The law against putting shared directors on the boards of competing companies had gone underenforced for so long that we found more than a dozen violations when we first started looking. And so, you’ve seen our public actions against Warner Brothers Discovery,[15] Pinterest, Nextdoor,[16] Sumologic, Sun Country,[17] Solarwinds, Definitive Healthcare, Skillsoft and others.[18]

The 16 interlocks we have unwound may seem like a lot. Certainly, they have massively and quickly deconcentrated critical industries. But it’s nothing compared to the scores of client alerts that followed those actions and all the directors who quietly resigned from interlocks before we came knocking.

Accountability for Criminal Antitrust Violations

Our most impactful source of deterrence is the Justice Department’s criminal enforcement authority. Congress established felony antitrust offenses because the most egregious collusive and exclusionary conduct can strike at the heart of our society.

I am proud to report that we have more than 50 criminal convictions and resolutions in the last two and a half years.

In one case, we secured a guilty plea from a long-running fugitive who fixed the prices of parking heaters that truck drivers rely on to keep them warm.[19] Our prosecutors followed him to the Canary Islands to prove that no one is above the law.

In another case, we secured guilty pleas from two realtors who rigged bids for farmland and timber rights.[20] Rural property owners deserve better than to have collusion rob them of a fair price for their land.

Taxpayers deserve better too, and many of our criminal cases have protected public projects from procurement collusion. From a case protecting U.S. military contracts in Korea,[21] to a case challenging fraud affecting government contracts intended for veteran-owned small businesses,[22] they reveal the scope of the problem and its impact on the public fisc.

There are many more: a case protecting competition in school sports equipment.[23] A case stopping bid rigging harming the New York City public school system.[24] Two other cases protected the MTA[25] and defended the integrity of procurement for the U.S. military.[26]

We also acted to punish felony monopolization for the first time in decades, in two more cases involving public procurement. These cases are the first two Section 2 criminal resolutions in half a century. [27] The text of Section 2 as passed by Congress says that monopolization is a felony. We are taking Congress at their word.

These actions have real results with wide impact. Our recent generic drug price-fixing resolution is a great example.[28] The resolutions required the companies to pay more than $200 million in penalties and divest their drug lines for a widely used cholesterol drug. This was the first criminal case divestiture in decades, ensuring the same company that fixed the prices of patients’ medicines wouldn’t get to control that medicine supply any more. In total, generic drug manufacturers paid more than $600 million in penalties for their price fixing.

That is law enforcement.

Promoting Enforcement with Appellate and District Court Filings

Our litigation prowess has been on display with the incredible string of more than 30 appellate and amicus filings over the last two years that have led the courts to reaffirm important principles supporting antitrust enforcement.

For example, earlier this year, a court of appeals fully restored our ability to pursue anticompetitive collusion by the National Association of Realtors.[29]

In the Deere case, the court repeatedly cited the division’s statement of interest in denying a motion to dismiss and vindicating that the antitrust laws protect the right to repair.[30] In Relevent Sports v. U.S. Soccer Federation, the Second Circuit quoted our amicus filing for the proposition that members of an association with anticompetitive rules can be subject to Sherman Act liability.[31] And in Chase Manufacturing, the Tenth Circuit agreed with the United States about the scope of Trinko, citing our brief in explaining that the refusal to deal framework applies only to narrow situations.[32] In many cases, the courts validated legal principles reflected in our revised Merger Guidelines even while the defense bar debated whether the courts would follow those same precedents. We saw that in Deslandes validating the application of antitrust laws to labor markets,[33] Regeneron vindicating the flexible approach to Brown Shoe and market definition in the guidelines,[34] and PLS.Com v. NAR with the Guidelines’ approach to the Amex decision.[35]

Most recently, we’ve filed several statements of interest related to algorithmic collusion in rental housing markets to underscore that anticompetitive collusion is illegal, whether it happens in a smoke-filled room or in a data center.[36]

Building Law Enforcement Partnerships and Advocating for Whole of Government Competition Policy

Our actions go beyond the courts as well. We have dramatically increased our partnerships and interagency collaborations with more than a dozen new initiatives that support detection and enforcement of both our statutes and those of federal partners.

We have new Memorandums of Understanding and expanded partnerships with U.S. Department of Agriculture (USDA), Consumer Financial Protection Bureau, Department of Labor (DOL), Department of Health and Human Services (HHS) Office of Inspector General, National Labor Relations Board and Department of Transportation among others. For example, under our expanded partnership with USDA, the Justice Department is bringing Packers & Stockyards competition cases for the first time ever.[37] Under our expanded partnership with HHS, we launched a new complaint portal to better identify antitrust violations in the healthcare industry.[38] As part of our new partnership with the DOL, our investigators are actively and often sharing tips and potential cases with each other.[39]

And we have filed 16 interagency comments, briefs and policy statements ranging from U.S. Trade Representative’s supply chain rulemaking[40] to the Copyright Office’s Right to Repair rulemaking.[41] The Whole of Government executive order has truly changed the policy dynamic around the federal government.[42]

Those are all in addition to ongoing engagement with numerous international agencies where we have proven ourselves a leading global voice in antimonopoly and competition policy.

Let me conclude with a question. Why do we prioritize action and walk our talk? Because that is how a small group of law enforcers at the Antitrust Division can help return power in the U.S. economy to the American people.

All of these actions, collectively, touch nearly every American and hundreds of billions of dollars in commerce. But more than that, they reorient the antimonopoly laws in the minds of business.

All over this country, companies see our growing Section 2 prowess, our dogged pursuit of criminal violations, our Section 8 enforcement and the merger guidelines’ focus on enforcing the merger laws as written. And when they see that, they call their lawyers and ask a simple but beautiful question: what do the antitrust laws actually say, and how do I comply?

When law enforcement is meaningful, the antitrust laws are no longer a suggestion. In the United States in 2024, the antitrust laws are again a requirement.

That is why we are an Antitrust Division of action. And it is why I am so proud to count myself among the incredible team of public servants who work there. My name is Jonathan Kanter, and I represent the people of the United States of America.