Global Enforcement, Tech Tactics Are New for Antitrust Chief

By Liz Crampton

The explosion of international regulators in competition enforcement is among the top issues the Justice Department antitrust division’s incoming leader will be briefed on upon his arrival, a top division official said Sept. 28.

The other change that Makan Delrahim will see immediately is the agency’s use of technology in conducting investigations, said Patricia Brink, the division’s director of civil enforcement, speaking at a conference in New York.

Delrahim, the White House’s pick to be the government’s competition watchdog, could start work as soon as Sept. 29 after a prolonged Senate confirmation process. Nominated in March, he was confirmed Sept. 27 on a 73-21 vote.

Delrahim had a prior stint at the antitrust division in President George W. Bush’s administration as a deputy assistant attorney general. Brink said much has changed in the intervening years.

“One of the first things we’ll do when Makan comes in is give him a briefing of what international cooperation looks like now,” Brink said. “It looks quite frankly very different than it did five years ago, much less 15 years ago.”

International Enforcement

In the Bush years, Delrahim helped form the International Competition Network (ICN), a body of competition enforcers around the world.

At the time, its membership had only about a dozen members. Now more than 100 antitrust regulators are part of what has become well-established and influential network, a reflection of a new global interest in competition enforcement.

About one-fourth of merger challenges in the U.S. involved cooperation with foreign authorities during the investigations, Brink said. Members of the ICN often stay in touch weekly to discuss competition policy and procedural fairness, she said.

“The cooperation has gotten much more frequent and much more deep,” she said.

NAFTA Chapter

Delrahim will play a leading role in advising U.S. trade officials as NAFTA renegotiation talks develop. Brink said the trade discussions are an opportunity for the U.S. to shape a competition chapter that would aim to make sure that U.S. companies “will be treated fairly and afforded processes that are transparent.”

The U.S. Trade Representative announced Sept. 28 that NAFTA’s competition chapter is expected to be completed before the next round of negotiations, which start on Oct. 11.

“You can expect that the antitrust division will advocate strongly that competition policies should promote efficiency and consumer welfare and should not be used for industrial policy objectives or to favor certain national champions,” Brink said.

Tech Improvement

Delrahim also will see the new ways division attorneys use electronic tools in investigations, she said.

In 2015, for example, the division set up a protocol for analyzing “predictive coding” that firms provide to the agency during investigations. Predictive coding, also known as e-discovery, uses machines to quickly locate relevant documents and expedite reviews. It’s a way for the government to get more information faster, officials say.

The antitrust division has also begun requesting information stored on social media accounts like Twitter Inc. and Facebook Inc. when collecting documents from companies under investigation. Delrahim’s previous stint at the division, from 2003 to 2005, occurred as Facebook was in its infancy and Twitter didn’t exist.

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