Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Monday, June 11, 2018

Deputy Assistant Attorney General Barry Nigro Delivers Remarks at the IBA Competition and Communications Law Conference in Milan Milan,Italy ~ Monday, June 11, 2018

See the speech here. Some excerpts:

That is what I would like to talk about today – our responsibility as Department of Justice officials to enforce the antitrust laws through effective law enforcement, rather than unnecessary regulation. Regulated markets tend to react more slowly to the rapid changes that are the lifeblood of dynamic industries such as communications. In contrast, by preserving competition through effective antitrust enforcement, markets and competitors are free to embrace innovation at the pace of invention, unconstrained by the reigns of a regulator. 


That is our guiding principle: whenever feasible, competition, as maintained through effective antitrust enforcement, is preferable to regulation. Competitive markets dynamically weigh risk and reward, support investment, and pivot to new innovation. Regulation, in contrast, is rigid and tends to be slow moving—lagging both competitive problems and new innovations. The literature describes as “regulatory lag” the delay between changes in market conditions or technology and the adjustment of regulations based on those factors. Particularly when attempting to regulate access to markets as a solution to a competitively problematic market structure, regulation and its resulting lags will typically mean delayed entry, expansion, or innovation.


As you know, Bayer proposed to acquire Monsanto in a $66-billion-dollar transaction. We worked with the parties to resolve all of our competition concerns with a historic divestiture. The proposed final judgment requires Bayer to divest businesses and assets valued at approximately $9 billion dollars. More importantly, none of the competitive problems, including the areas of vertical concern, were attempted to be managed using behavioral dictates. 

A few features of that settlement underscore our approach in dynamic markets. First, we undertook a thorough investigation and we were ready to litigate while also coordinating across jurisdictions. Although our friends at the EC were also working on their own review, we worked closely with them to coordinate our remedies.  

Most importantly, the relief we obtained is purely structural. Bayer has agreed to divest itself of all of the businesses and assets needed to fully address both our horizontal and our vertical concerns with the transaction. While there are temporary commitments in place to effectuate the divestiture, it is important to note that they are a means to support the structural relief we obtained. After those transition commitments have passed, the market structure obtained in the settlement will remain, and throughout it will remain flexible to innovation and evolution in the industry.  

We have also included in the Bayer/Monsanto settlement a number of new provisions to allow for more effective enforcement of the decree. Along with enforcement provisions that have been in all of our recent settlements, we have also added a new provision regarding the interpretation of the decree, which we intend to include in all decrees going forward.

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