Parties regularly present their arguments and defenses of conduct and mergers to the Front Office of the Bureau if staff has recommended a challenge. A surprising number of these presentations begin with a recap of “how we got here” that includes various complaints about the investigating staff. Common complaints have included: the investigation is taking too long; staff didn’t present their concerns early enough in the investigation; and market definitions or areas of concern have evolved during the investigation. To be blunt, complaining about the staff is not a good defense. It doesn’t tell the Front Office anything about why the Commission should not be concerned about your potentially anticompetitive conduct or merger, and it wastes some of the time allotted for these meetings. It may be cathartic to get these concerns out. And some parties may even hope to engender sympathy with leadership by throwing the staff under the proverbial bus. But it isn’t helpful to making your case.
To be sure, the Bureau does care about ensuring that investigations are expeditious and as transparent as appropriate. But management in the Bureau is well aware of the pace and scope of the investigation through regular internal meetings. If you have concerns about the course or pace of the investigation, you should raise those concerns with the case team lead, the Division management, and then the Bureau Front Office prior to a recommendation being forwarded. Also, think carefully about the concerns you’d like to raise, and where responsibility for delays may lay. Complaints about the investigation taking too long are often ill-advised when the parties themselves delayed in responding to second requests or subpoenas, requested extensions of time during the investigation, or took considerable time to provide suggested remedies. As to complaints about evolving theories, the antitrust analysis often shifts as staff learns more about the industry or gains an understanding from market participants about which customers are likely or unlikely to be harmed. This is the purpose of the investigation – and, we submit, is preferable to an alternative scenario in which staff reaches a conclusion before conducting a thorough inquiry. Most often, the scope of the investigation narrows as questions about markets are resolved and staff closes that aspect of their investigation.
Any concerns about process should be raised well before a complaint recommendation is pending. By the time a recommendation from staff is pending, parties are best served by explaining why their merger or conduct does not violate the antitrust laws – not by explaining how they would have preferred the investigation to have proceeded.