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Dan McInnis, Sep 30, 2008
Change may be the catchphrase of this year’s U.S. election cycle, but continuity will be the reality for U.S. cartel enforcement. Regardless of whether Republican Senator John McCain or Democratic Senator Barack Obama wins the election in November, the virtual hydraulic press of high-profile and vigorous cartel investigations and prosecutions will continue. That is not to say there will be no differences at the margins for cartel matters and high-level policy. Despite the conventional wisdom that Democrats care more about “rigorous” antitrust enforcement than Republicans, the past eight years of Republican enforcement efforts demonstrate that cartel enforcement by the U.S. Department of Justice’s Antitrust Division (“DOJ “) (which handles all federal criminal antitrust matters) is not just a priority, it has been the DOJ’s highest priority. Reportedly, grand jury investigations of cartel activity are at an all-time high. Given Senator McCain’s past support for pro-enforcement legislation, a McCain administration likely would continue the push for greater cartel enforcement, larger fines, and longer jail sentences. While there is no doubt that an Obama administration likewise would support rigorous cartel enforcement efforts. His campaign promises a broader and more intense enforcement focus on mergers, single-firm conduct cases, and, ultimately, civil lawsuits brought by the DOJ. Cartel enforcement will matter, but all indications are that the DOJ would undergo some abrupt changes in direction and a shift in resource allocation in an Obama administration. The question is how these changes will play out at the margins for cartel enforcement.