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®: CRE Regulatory Action of the Week

Department of Justice Antitrust Procedures in Grain Case Offers Template for Resolving Microsoft Litigation

The Antitrust Procedures and Penalties Act [15 USC 16(b)-(h)] provides a set of procedures for resolving antitrust suits which includes the opportunity for public comment on the proposed settlement prior to filing the settlement with the court. The proposed Final Judgement for the Department of Justice's antitrust case against Cargill, Inc. and Continental Grain offers an example of this public process. The resolution of this case, which concerned Cargill's acquisition of Continental's grain trading business, may offer a template for ensuring that the public has the opportunity to comment on and participate in crafting a Final Judgement resolving the Microsoft litigation.

Key procedural steps in the case, as specified by the Antitrust Procedures and Penalties Act, were:

  1. The Department filed the Complaint and proposed Final Judgement with court.
  2. Defendants filed settlement pursuant to 15 USC 16(g) with the court.
  3. The Department filed a Competitive Impact Statement (CIS) with the court.
  4. The proposed Final Judgement and the Competitive Impact Statement were published in the Federal Register for comment.
  5. A summary of the terms of the proposed Final Judgement and the Competitive Impact Statement were published in The Washington Post for seven days.
  6. There was a sixty day period for public comment on the proposed Final Judgement and the Competitive Impact Statement as specified in 15 USC 16(b).
  7. Pursuant to 15 USC 16(b), the Department filed with the court and published in the Federal Register:
    • Public comments;
    • An amicus brief filed by a State Attorney General; and
    • The government's Response to the public comments and amicus brief.
  8. The Department moved that the court enter the Final Judgement after the comments and Response were published in the Federal Register. 15 USC 16(d) requires publication in the Federal Register prior to Final Judgement being entered.

The CRE has previously proposed, as a Remedy to the Microsoft litigation, that the draft settlement be provided to the public for comment through the Federal Register and be subject to the "good government laws" including the Administrative Procedure Act, Paperwork Reduction Act, Regulatory Flexibility Act and Executive Order on Regulatory Planning and Review.

The CRE believes that the process followed in the Cargill antitrust case offers a template for resolving Microsoft litigation through an open public process.

Please click here to read the CRE's Remedies to Regulation by Litigation including the Microsoft case

Please click here to read the Department of Justice's proposed Final Judgement and Competitive Impact Statement, 64 FR 44046

Please click here to read the Department of Justice's court submission including public comments and the Department's Response, 65 FR 15982

Please click below to submit comments to the CRE regarding the Remedy for Microsoft litigation.

Remedy for Microsoft litigation: Interactive Public Docket

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