Public Comments Submitted by the Open Markets Institute for the Antitrust Division’s Roundtable on Antitrust Consent Decrees

Below is an excerpt of the public comments submitted by the Open Markets Institute to the Department of Justice's Antitrust Division for their roundtable discussion on antitrust consent decrees, held on April 26, 2018.

"The question before us today is the effectiveness of antitrust consent decrees. In general, we believe antitrust enforcement agencies should avoid over-reliance on such agreements. In many instances, consent decrees fail to strike at the root of anti-competitive conduct. They often serve as band-aid solutions that seek to regulate the harms generated by market power without addressing the underlying incentive and ability that firms have to wield it. Moreover, consent decrees can introduce unwieldy regulatory regimes that are both difficult to administer and susceptible to runarounds by the private parties they are intended to cover.

In limited and narrow circumstances, however, a consent decree can serve as an appropriate tool to open up to competition markets that private interests have closed through illegal or improper means. As we discuss below, the select use of non-discrimination provisions and mandatory licensing behavioral decrees—especially in network and infrastructure industries—can be key mechanisms for promoting competition."

You can find the full public comments here.

You can also find our previous public comments, at the DOJ's March 14th roundtable discussion on antitrust exemptions and immunities, here.