|
The Division's organizational roots can be traced to the creation in March 1903 of an Assistant to the Attorney General to take charge of all lawsuits filed under the antitrust and interstate commerce laws and to assist the Attorney General and the Solicitor General in the conduct of the general executive work of the Department. The post was created under President Theodore Roosevelt and Attorney General Philander Knox.
With the growth of the economy and corporate enterprise during the early part of the 20th century, it became evident that the Department of Justice must have its own corps of specialists in antitrust law to cope with the increasing complexities of antitrust enforcement. Consequently, in 1933, under the administration of President Franklin D. Roosevelt and Attorney General Homer S. Cummings, the Antitrust Division was established. At that time, the Division employed 16 lawyers and had a budget of $142,000.
Harold M. Stephens was appointed the first Assistant Attorney General in charge of the Antitrust Division. Among the individuals who were in charge of the Division were John Lord O'Brian, William Donovan, Robert H. Jackson, Thurmond Arnold, and Tom Clark.
The mission of the Antitrust Division is the promotion and maintenance of competition in the American economy. Private anticompetitive conduct is subject to criminal and civil actions under the Sherman and Clayton Acts, statutes that prohibit conspiracies in restraint of trade, monopolization, and anticompetitive mergers. Through participation in Executive Branch activities and in regulatory and legislative processes, the Division seeks to ensure that government action is procompetitive or not unnecessarily anticompetitive. Through its own litigation, through amicus filings, and in a variety of other public forums, the Division also seeks to guide the advancement of antitrust jurisprudence.
The primary functions and goals of the Division include:
General criminal and civil enforcement of the federal antitrust laws and other laws relating to the protection of competition and the prohibition of restraints of trade and monopolization, including investigation of possible violations of antitrust laws, conduct of grand jury proceedings, issuance and enforcement of civil investigative demands, and prosecution of all litigation that arises out of such civil and criminal investigations.
Intervention or participation before administrative agencies functioning wholly, or partly, under the regulatory statutes in proceedings requiring consideration of the antitrust laws or competitive policies, including such agencies as the Commodities Futures Trading Commission, Federal Communications Commission, Federal Energy Regulatory Commission, Federal Maritime Commission, Federal Reserve Board, Nuclear Regulatory Commission, Securities and Exchange Commission, and Surface Transportation Board, except proceedings referred to any agency by a federal court as incident to litigation being conducted under the supervision of another division within the Department.
Advocacy of procompetitive policies before other branches of government, including:
Developing and presenting legislative proposals of the Department relating to the antitrust laws and competition generally and responding to requests for advice and comments on such matters from Congress and other agencies.
Advising the President, the departments, and other agencies of the Executive Branch on the competitive implications of governmental action.
Assembling information and preparing reports required or requested by the Congress or the Attorney General as to the effect of various federal laws or programs upon the maintenance and preservation of competition under the free enterprise system.
In addition to these primary functions, additional functions of the Antitrust Division are codified at 28 C.F.R. §§ 0.40, 0.41.
The official organizational structure of the Division is established in a formal organization chart approved by the Attorney General and Congress. The Division is supervised by an Assistant Attorney General. The Assistant Attorney General is nominated by the President and confirmed by the Senate. The Assistant Attorney General is assisted by five Deputy Assistant Attorneys General who may be either career or noncareer employees; at least one (the Deputy Assistant Attorney General for Criminal Enforcement) traditionally has been a career employee. Each section and field office reports to a particular Deputy Assistant Attorney General. The Director of Operations and the Director of Criminal Enforcement, who are career employees, have additional supervisory authority for the civil and criminal programs, respectively.
The Division has fourteen litigating components: seven sections in Washington and seven field offices in various cities around the country. These fourteen components each typically consist of a staff of attorneys and various support personnel including paralegals and secretaries. Each section and field office is headed by a chief and an assistant chief, and these components carry out the bulk of the Division's investigatory and litigation activities. The Division has several other components that perform specialized roles, including three economic sections, the Appellate Section, the Legal Policy Section, the Foreign Commerce Section, and the Executive Office that oversees administrative matters for the entire Division.
The Assistant Attorney General in charge of the Antitrust Division is responsible for leadership and oversight of all of the Division's programs and policies and is the Division's chief representative. The Assistant Attorney General is assisted by five Deputy Assistant Attorneys General. In addition, the Assistant Attorney General may be assisted by a Chief of Staff, who is responsible for managing the Office of the Assistant Attorney General. The Chief of Staff also advises the Assistant Attorney General on the formulation and implementation of highly sensitive antitrust policy issues of national economic importance and coordinates that policy with other federal and state governmental agencies. The Assistant Attorney General may be assisted by several senior or special counsel.
The five Deputy Assistant Attorneys General are of equal rank, and the Assistant Attorney General will designate one of them to exercise the powers of Assistant Attorney General in his or her absence. In some cases, one of the Deputies may be given the title of "Principal Deputy"; the Principal Deputy is, in effect, "first among equals" among the Deputies and will be the one who typically assumes the powers of the Assistant Attorney General in the Assistant Attorney General's absence. If a vacancy occurs in the Assistant Attorney General position, one of the deputies will be designated to serve as Acting Assistant Attorney General until a new Assistant Attorney General is nominated by the President and confirmed by the Senate.
Each of the five Deputy Assistant Attorneys General has a number of components that report to him or her as indicated on the Division's organization chart. Typically, one Deputy has supervisory and management responsibility for the three economic sections: the Economic Litigation, Economic Regulatory, and Competition Policy Sections. This Deputy is referred to as the Deputy Assistant Attorney General for Economic Analysis and is an economist. There is also a Deputy Assistant Attorney General for International Enforcement, who has supervisory responsibility for the Foreign Commerce Section. The Deputy Assistant Attorney General for Criminal Enforcement has overall supervisory and management responsibility for the National Criminal Enforcement Section and all of the Division's Field Offices and is primarily responsible for the Division's criminal enforcement program. This Deputy is typically a career employee. Civil enforcement responsibilities are divided between the Deputy Assistant Attorney General for Regulatory Matters and the Deputy Assistant Attorney General for Civil Enforcement.
In some unusual cases, a matter being handled by a particular Division component may be overseen by a Deputy other than the one with primary responsibility for that component; this generally happens if the matter falls more within another Deputy's area of expertise or if the Deputy who would otherwise have responsibility is recused. In addition, the responsibilities of the various Deputies vary from time to time depending upon guidance from the Assistant Attorney General.
There are two Directors of Enforcement—the Director of Operations and Civil Enforcement and the Director of Criminal Enforcement—and a Deputy Director of Operations, who are career employees. The Directors of Enforcement have direct supervisory authority over the activities of the various sections and field offices; they work closely with the five Deputy Assistant Attorneys General in overseeing Division activities. Each Director is responsible for matters arising out of the various Division components that fall within his or her particular area of responsibility. There are four special assistants to the Directors of Enforcement; these assistants generally serve for two years. The four special assistants each are assigned several sections and field offices and play a liaison role between those sections and the Directors, in addition to performing other activities assigned by the Directors.
In addition to its role in supporting the Directors of Enforcement and the Deputy Director of Operations, the Office of Operations coordinates the administrative policies and procedures affecting the Division's operations and includes four administrative and support units: the Premerger Notification Unit/FTC Liaison Office, the Freedom of Information Act Unit, the Paralegal Unit, and the Training Unit. These units report to the Director of Operations (who also serves as one of the Directors of Enforcement) and to the Deputy Director of Operations.
The functions of the Premerger Notification Unit/FTC Liaison Office are described in Chapter VII, Part A. The FOIA Unit receives, evaluates, and processes all Freedom of Information Act and Privacy Act requests made to the Division. It also responds to requests for information by state attorneys general pursuant to Section 4F of the Clayton Act, 15 U.S.C. § 15f(b). See Chapter VII, Part C.3.a (describing 4F procedures). The Antitrust Documents Group of the FOIA Unit also maintains and indexes pleadings, business review letters, and other frequently used files. See Chapter VI, Part A.3 (describing the FOIA Unit); Chapter VII, Part G (describing FOIA procedures). The Paralegal Unit provides paralegal support on request to investigations and cases handled in Washington and the field offices. The Training Unit coordinates training opportunities for Division personnel. See Chapter VI, Part A.8 (describing Division training programs).
Much of the civil investigative activity and litigation of the Division, as well as some criminal enforcement activity, is carried out by the seven Washington, D.C., litigating sections. A brief description of the activities of each follows.
Lit I assesses the economic impact of proposed mergers in unregulated industries and acts to clear the proposed merger, negotiate a restructuring of the proposal, or file suit to block the merger. Lit I also investigates and prosecutes civil nonmerger cases in assigned commodity areas, including healthcare, insurance, pulp, paper, timber, photography, film, appliances, food products, and cosmetics.
Lit II has broad civil enforcement responsibilities in a broad range of industries. Its case load is primarily the investigation and litigation of mergers, but it also handles civil nonmerger work in its assigned industries, which include metals, banking, defense, and industrial equipment. Lit II has developed ongoing relationships with the Federal Reserve Board and the Department of Defense.
Litigation III has broad civil merger and nonmerger enforcement responsibilities in an assigned portfolio of industries. It handles matters arising in a number of sectors, but its primary emphasis is on the entertainment and noncable media industries. It focuses primarily on motion pictures, music, publishing, radio, television, newspapers, advertising, sports, and toys and games. Lit III's jurisdiction also encompasses a number of other services and commodities, including credit and debit cards and real estate.
NCES is the only Washington section responsible for conducting criminal investigations and litigation in association with its field office counterparts. NCES handles criminal investigations in a wide range of industries.
NET TECH is responsible for antitrust and competition policy in the areas of computer hardware and software, high technology component manufacturing, Internet-related businesses, financial services, and the securities industry. NET TECH is actively involved in merger enforcement as well as a broad range of investigation of civil conduct. NET TECH also has continuing responsibility for monitoring and enforcing the Microsoft consent decree. NET TECH has developed ongoing relationships with a variety of federal agencies and departments including the Securities and Exchange Commission, Commerce Department (Internet domain names), and Commodities Futures Trading Commission. NET TECH also engages in competition advocacy with state authorities issuing regulations relating to the practice of law.
TEL is responsible for the enforcement of the antitrust laws and competition advocacy in the communications industry. TEL participates in proceedings before the Federal Communications Commission (FCC) and coordinates merger reviews with FCC staff.
TEA has responsibility for the enforcement of the antitrust laws and the promotion of competition in transportation, energy, and agricultural commodities. TEA participates in proceedings before such agencies as the Federal Maritime Commission, Federal Energy Regulatory Commission, Environmental Protection Agency, and Department of Agriculture. TEA is active in legislative activities relating to the deregulation of various transportation, energy, and agricultural industries, and prepares a variety of reports to Congress and the Executive Branch on policy issues related to those commodities.
The seven field offices of the Antitrust Division are responsible for conducting criminal investigations and litigation. Some field offices also handle some civil merger and nonmerger matters, depending on resource availability and particular expertise. These offices function in the same fashion as the litigating sections in Washington and also act as the Division's field liaison with U.S. Attorneys, state attorneys general, and other law enforcement agencies within their areas.
Following are the geographic areas covered by each field office:
Atlanta: Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Puerto Rico, and the U.S. Virgin Islands.
Chicago: Colorado, Illinois, Indiana, Iowa, Kansas, Western District of Michigan, Minnesota, Missouri, Nebraska, North Dakota, South Dakota, and Wisconsin.
Cleveland: Kentucky, Eastern District of Michigan, Ohio, and West Virginia.
Dallas: Texas, Oklahoma, Louisiana, New Mexico, and Arkansas.
New York: Connecticut, Maine, Massachusetts, New Hampshire, Northern New Jersey, New York, Rhode Island, and Vermont.
Philadelphia: Delaware, Maryland, Southern New Jersey, Pennsylvania, and Virginia.
San Francisco: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyoming.
The Economic Analysis Group (EAG) is comprised of three sections, the Economic Litigation Section (ELS), the Economic Regulatory Section (ERS), and the Competition Policy Section (CPS). The economic sections do not have investigative responsibilities that correlate directly with those of specific legal sections. Instead, matters are assigned to economist-managers primarily as a result of their industry experience, and those managers draw on EAG staff in any of the sections to undertake the analysis. Thus, it is not unusual for a matter to be under the economic supervision of a manager in one section, but staffed by economists from the other two sections.
The economic issues most often analyzed by all three sections include the competitive effect of mergers and acquisitions, the competitive effects of various alleged trade restraints and proposed regulatory changes, and economic aspects of competition advocacy efforts undertaken by the Division. As part of this competition advocacy effort, economists work extensively with Foreign Commerce Section attorneys on a variety of international matters. Most notable in recent years has been assistance to foreign governments around the world in writing antitrust laws, training antitrust officials, and evaluating specific competitive issues. Economists are assigned to all civil enforcement, regulatory proceeding, and competition advocacy matters and participate fully in them from the initial investigative stage through their final resolution. Economists are also available to serve as expert witnesses in court and agency proceedings.
ELS also includes the Corporate Finance Unit (CFU) which provides financial analyses of failing firm defenses, divestitures, and efficiencies defenses; makes recommendations as to fines; and reviews financial issues involved in damage analyses and other issues requiring financial, accounting, and corporate analysis. Financial analysts are assigned to a matter as soon as it is apparent that issues requiring their assistance are present. A full description of the activities of the CFU is contained in Chapter VI, Part A.6.b.
The Appellate Section represents the Division in all appeals to the United States Courts of Appeals and, in conjunction with the Office of the Solicitor General, all appeals before the United States Supreme Court. This responsibility includes filing amicus briefs in selected private antitrust cases and in other cases where the Division's competition advocacy is considered appropriate. In addition to antitrust matters, the Appellate Section represents the United States as statutory respondent in proceedings to review orders of several federal agencies, such as the Surface Transportation Board and the Federal Communications Commission. Procedures relating to appeals in which the Division is involved, or may have an interest, are described in Chapter IV, Part G.
The Foreign Commerce Section assists other sections in matters with international aspects and is primarily responsible, at the staff level, for the development of Division policy on international antitrust enforcement and competition issues. The Foreign Commerce Section handles the Division's relations and cooperation with international organizations and foreign antitrust enforcement agencies, including its compliance with notification and other obligations pursuant to various bilateral and multilateral agreements to which the United States is a party. The Division's activities regarding international organizations and notification procedures are more fully described in Chapter VII, Part D. Foreign Commerce also coordinates the Division's duties under the Export Trading Company Act of 1982, which is described in Chapter III, Part H.3.
The Legal Policy Section provides analyses of complex antitrust policy matters for the Division and Department, as well as for submission to Congress. The Legal Policy Section also coordinates the Division's legislative program and handles long-range planning projects and programs of special interest to the Assistant Attorney General. Legal Policy is involved in a broad spectrum of activities, including conducting studies and making recommendations relating to Division enforcement policies, reviewing investigations and case recommendations for legal and policy considerations, and developing and researching legislative matters that are of interest to the Division. The Legal Policy Section's Legislative Unit is primarily responsible for coordinating the Division's relations with Congress and for responding to congressional requests and inquiries of the Division. Legal Policy is also responsible for all matters involving ethics and professional responsibility.
The Executive Office formulates and administers the Division's budget and fiscal responsibilities, manages its reporting and records, handles personnel matters, coordinates procurement and contracting, manages facilities and services, and provides information systems services for all Division activities. The Information Systems Support Group (ISSG) is located within the Executive Office and is responsible for providing automated services and resources to handle information in support of the Division's attorneys, economists, and managers. ISSG applies automated data processing techniques in three major areas: automated litigation support and economic analysis, management information systems, and office automation systems. ISSG provides these support services through both government and contract personnel. ISSG makes extensive use of computer and database management systems. Chapter VI, Part A.7 contains a description of ISSG services.
The Division maintains libraries in Washington and in all seven field offices. Division libraries operate in conjunction with the Department of Justice's Main Library. Requests for information should be made to the Division Librarian, who coordinates access to automated research databases, as well as printed materials, and arranges interlibrary loans, as appropriate.