It’s been nearly three months since public comments were filed in the Justice Department’s antitrust settlement with Mountain Health Care. Nicholas Provenzo submitted comments on the Center for the Advancement of Capitalism’s behalf, while I presented a 49-page filing on behalf of Citizens for Voluntary Trade. Both Nick and myself expressed strong opposition to the Mountain settlement, and my comments went to great lengths to pick apart the government’s case point-by-point. The presentation managed to impress Mountain officials, one of whom later told me they wished I had been retained as their counsel (unfortunately for Mountain, I’m not a member of the Bar.)
To date, the DOJ has not responded to any of the filed comments. They will eventually, as they’re required by the law governing antitrust settlements–the Tunney Act–to file all comments received, along with a reply, with the district court overseeing the case. But since the March 7 comment deadline, we’ve heard nothing. This is a long delay, and there’s no sign of when it will end, but sadly the DOJ can afford to stall. For even though the Mountain settlement has not been approved by the district court, the terms of the agreement were carried out more than a month ago–Mountain Health Care is no more, having dissolved under the terms of its DOJ settlement.
In one sense, this demonstrates just how toothless the Tunney Act is, at least when it comes to enforcement. The text of the law clearly implicates that the government should refrain from imposing its antitrust remedies until the court has a chance to determine whether the settlement is in the “public interest,” a process that includes input from the public via a 60-day comment period following the official notice of a proposed settlement. If the government feels that a remedy must be imposed with greater speed, the Tunney Act gives the DOJ the right to ask the court for a shortening of the comment period. This process is rarely utilized, however, because the DOJ simply words their consent agreements to have them take effect before the regular comment period expires. The district courts, which are inclined to do as little work as possible on antitrust settlements, simply go along with this overt flaunting of the Tunney Act.
The DOJ’s explanation for executing settlements before approval is that a quick resolution will satisfy the public interest. But how can they satisfy that interest when the court has yet to determine what it is? Especially in a case like Mountain–where I offered substantial evidence the government committed fraud–it is essential for the courts to exercise direct supervision over the government’s activities. Otherwise, the courts are simply giving the DOJ a blank check to run roughshod over businesses, as was the case with Mountain, a company that was denied its existence without any chance to defend itself before a court of law.
For all the recent talk about how laws like the PATRIOT Act undermine civil liberties, there is appallingly little discussion about the antitrust laws, which eviscerate the Constitution on a daily basis. The first error of antitrust is that it allows the government to conduct criminal prosecutions under the fa