The US Justice Department is increasingly intervening in private antitrust cases, hoping to shape the law in suits alleging algorithmic price-fixing, anticompetitive deals, and other violations.
The DOJ’s so-called statements of interest allow the agency to weigh in on how competition law should be applied without straining its resources, at a time when its antitrust division is seeking additional funding from Congress.
Agency watchers expect the DOJ to continue using the tactic regardless of the next administration, as antitrust enforcement—especially in high-profile cases like the rental price-fixing suit against RealPage Inc.—remains a priority. But more frequent use of the tool, critics say, could dilute its power, and lead to resistance from courts.
Behind the scenes, the DOJ is evaluating private antitrust litigation, and diving into cases where it sees fit.
“It’s really part of the antitrust division’s mission, to utilize its authority to intervene, and help courts understand the competition laws,” said Richard Powers, the former acting head of the DOJ’s antitrust division and current partner at Kressin Meador Powers LLC.
The agency’s antitrust SOI filings jumped during the Trump administration, dipped with a change in leadership during the pandemic, and have ramped up during Biden’s term, including five so far this year.
On May 3, the DOJ filed a statement in Colorado’s lawsuit challenging the $25 billion merger between
The DOJ has had some wins. In one suit, the US District Court for the Northern District of Illinois agreed in 2022 with the agency’s statement that an antitrust exemption didn’t shield private universities from allegations they fixed the price of financial aid.
The statement-of-interest program “is helping prove that through the litigation process, courts are willing and able to apply the antitrust laws to modern market realities,” David Lawrence, policy director for the DOJ’s antitrust division, said in an emailed statement.
In other cases, courts are taking a more skeptical view. While some courts take the statements into account, others have rejected the filings’ content, said Christine Bartholomew, a law professor at the University at Buffalo who has written about the SOI program.
“What you’ll see is in some opinions, the judge often ignores it completely, doesn’t say a word about it,” Bartholomew said. “Others are like ‘I was going to reach this decision and look, they say what I’m doing is right.’”
‘Ahead of the Curve’
The DOJ is motivated to use statements of interest to ensure the law “trends in the right direction,” Powers said. The DOJ wants to state its views on how the law should be applied before the court makes a precedential ruling that could hamstring the agency’s future enforcement efforts.
“We’ve put a lot of thought into getting ahead of the curve of that on a lot of fronts, and that would include shaping the law,” Powers said, referring to his work at the DOJ involving algorithmic price-fixing.
The statements can also provide guidance to plaintiffs and defense attorneys, helping them build their arguments around the DOJ’s view on a particular case.
A statement addressing novel antitrust issues can be more useful than one that simply summarizes points already made in a case, said Rani Habash, partner with Dechert LLP who defends companies in government antitrust investigations.
“There’s value in some of it in that they are providing some transparency in how they view issues,” Habash said. If a statement comes across as political, however, “it’s going to have less value in the judge’s eyes and even in the antitrust bar’s eyes,” Habash said.
Court Backlash
Courts are taking a harder look at the DOJ’s filings, especially as the volume of statements has increased, said Ann O’Brien, partner and co-leader of Sheppard Mullin’s antitrust and competition practice who previously worked for the DOJ’s antitrust division.
“It’s starting to feel like there is backlash,” O’Brien said. “I’m starting to see trends of less reliance on those briefs by courts. They are not affording them the weight they used to.”
The increasing use of the statements has the potential to weaken their power, especially when deployed to advance an administration’s political views, said Bartholomew, the law professor.
“They could be weaponized for a political agenda,” Bartholomew said.
The DOJ and FTC occasionally team up on statements. But Bartholomew noted the DOJ can use its briefs to undermine the FTC, which is intended to have an equal voice in the enforcement of antitrust law. She cited the DOJ’s 2019 brief filed in a case against chipmaker Qualcomm Inc. that contradicted the FTC’s arguments.
“We have multiple mechanisms to allow this multi-prong enforcer paradigm without having one come in and say, ‘Oh by the way, we know better,’” Bartholomew said.
— With assistance from
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