The Department of Justice is defending its right to intervene in private antitrust litigation and plans to have its say in more cases this year.
“It has been our legal obligation since at least 1975 to file amicus briefs in just this way,” Michael Murray, deputy assistant attorney general at the DOJ’s antitrust division, said in a March 8 speech at the Santa Clara University School of Law. “It should be no surprise that we are doing what we are tasked to do.”
The DOJ, under antitrust chief Makan Delrahim, has increasingly filed amicus briefs and statements of interest in private antitrust cases in order to voice the government’s perspective. The increase in such filings has triggered criticism that the DOJ is taking a position that would potentially weaken plaintiffs’ ability to win cases on antitrust grounds.
Such briefs and statements are used by the government to intervene in a case without being a party in the suit and can influence how the judge overseeing an antitrust case weighs a plaintiff’s argument.
The antitrust division filed only one brief in 2017. After about a year under Delrahim’s leadership, the division filed nine briefs, Murray said. “If the current rate holds we will double that again in 2019, to approximately 20 briefs,” he said.
The DOJ has filed briefs nationwide in a wide range of cases, including fast-food no-poach agreement claims and patent rate disputes.