Topic: Government Enforcement of the Antitrust Law
Senator: Kohl
Date: SEPTEMBER 14, 2005
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KOHL: Judge Roberts, I would like to talk a little about antitrust. I'm the ranking member on the Antitrust Subcommittee.
To me, antitrust is not some mysterious legal theory that only lawyers can talk about or understand. Antitrust is just another word for fair competition.
The laws that we use to protect consumers and competitors from unfair and illegal trade practice is what antitrust is all about.
Do you agree that government enforcement of antitrust law is crucial to ensuring that consumers are protected from anti-competitive practices such as price fixing and illegal maintenance and monopolies?
ROBERTS: Yes, I do, Senator. In fact, when I was in private practice, one of the cases I handled was the Microsoft antitrust case, on behalf of government officials.
The states in particular -- a number of states -- retained me to argue that case before the D.C. Circuit on bond.
So I certainly appreciate the role of governments -- both state and federal -- in enforcing the protections of the antitrust laws because, as you know, there's concurrent authority in that area: the Sherman Act, of course, on the federal level, and then what people call the baby Sherman Acts on the state level.
KOHL: I'm glad to hear you say that because on June 14th, 1983, which is more than 20 years ago, in a memo to the White House counsel Fred Fielding, you wrote, quote, "Enforcement of federal rights is advanced most effectively by private suits in antitrust cases."
KOHL: So isn't it often true that individual consumers don't have the resources to pursue these private suits against large corporations? And isn't that why government enforcement of antitrust is essential? So you would perhaps not be feeling the same way today as you did 22 years ago when you made that comment?
ROBERTS: Well, I think it depends on what area you're talking about. I do think that the system established under the Sherman Act of private antitrust enforcement -- and of course the opportunity to recover additional damages and attorneys' fees and other aspects -- has been an effective tool in enforcing the law.
There are areas, as you mentioned, if the issue is mostly consumer rights as opposed to business rivals, that government action may be more necessary in those areas as opposed to the others.
And I know that government antitrust regulators make those determinations every day, that their resources are best directed to areas where consumers or attorneys bringing class actions on consumers' behalf, whatever the reason, where the incentive system for private litigation may not be as effective. And that's often the area where state attorneys general, the Justice Department, decide to get involved to supplement the private enforcement activity.
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