More Aggressive Antitrust Enforcement Ahead

Setting the tone for more vigorous antitrust enforcement in the Obama administration, especially with respect to unilateral conduct of market-leading firms, on May 11, 2009, Christine Varney delivered her first public remarks as the new Assistant Attorney General for Antitrust ("Varney" or "AAG Varney"). Most significantly, Ms. Varney took quick and decisive action and formally withdrew and repudiated Sherman Act Section 2 enforcement policy articulated in a 215-page report issued by the Antitrust Division under the Bush administration in September 2008. AAG Varney declared that the Antitrust Division will aggressively enforce antitrust laws against predatory or unjustified exclusionary acts by dominant firms. Varney cautioned that businesses, lawyers and courts should not rely on the 2008 report as either a current reflection of Antitrust Division enforcement policy or an appropriate interpretation of Section 2 of the Sherman Act.