8 - “Consensus”-Based Sanctions and Commitments

Summary

In the US, consent judgments, decrees, or orders entered into between merging parties and government are a longstanding tradition. There are three key components to such consensus-based remedies. First, the remedies are not truly a consensus. The second notion is one of transparency: the remedies proposed in such settlements are made public. The nature of the theories of harm the remedies seek to mitigate are public as well. The third notion is typically a question of the overall merits of the remedy. Whether or not a merger remedy is in the public interest is a broad question. This chapter details the common provisions of the Department of Justice and Federal Trade Commission’s settlements, alongside the EU Commission’s settlements. It looks for common weaknesses between the methods of settlement deployed, and the harms to competition that might arise from such systems. It concludes that competition policy is increasingly regulatory and non-adjudicatory. To the extent that consent settlements are important and prominent, it would make sense to have stakeholders have some significant say in the settlement. Lack of meaningful judicial review assures that any concerns are ignored. The authors critically note that lack of transparency assures that any concerns not listed in the proposed settlement are not properly addressed.