Trinko and Credit Suisse Revisited: The Need for Effective Administrative Agency Review and Shared Antitrust Responsibility

Synopsis: Over the course of antitrust and regulatory development, it had become generally accepted that both courts and agencies have a substantial, necessary role in developing and applying antitrust policy to regulated companies. These companies are among our largest and most important. They sell products and services that are essential to the public. Regulated companies often have substantial market power. However, in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, Credit Suisse Securities (USA) LLC v. Billing, and other cases, the courts have signaled a movement away from potentially coordinated responsibility between courts and agencies to protect against antitrust abuse, suggesting that in monopolization and perhaps other cases, administrative agency antitrust supervision may suffice.Before agencies are given a more predominant antitrust responsibility, careful analysis is needed of whether agencies are capable of exercising the task and whether they are likely to do so. Examination shows that if antitrust enforcement is to be protected, we cannot rely mainly on agencies. Agencies often face statutory limitations, have other non-antitrust priorities, and may be subject to political and other influences that limit their ability and willingness to apply antitrust policy. Moreover, agencies have moved away from deciding major competition and other cases based upon hearings, limiting their fact-finding abilities. Compared with judicial antitrust cases, process is often limited.The authors conclude that agencies must continue to have significant antitrust roles but that judicial antitrust enforcement must also be fully available. This result is consistent with Trinko and Credit Suisse, which do not require courts to leave antitrust enforcement entirely to agencies. The authors recommend that courts and administrative agencies exercise shared or coordinated responsibility over antitrust policies in regulated industries.I. INTRODUCTION1Effective antitrust application in regulated industries is crucial to the nation's economic well-being. These industries are some of our most important, including segments of electricity, public transportation, communications, health care, banking, trading markets, and securities. Although in recent years aspects of these industries have been deregulated, regulated industries have a history of monopolization, and companies in them often have a continued ability to exercise market power.2Early in the history of regulated industries, courts were the major protectors of antitrust principles. Most regulatory agencies limited themselves, sometimes consistent with their statutes and their purposes, to enforcing their authorizing statutes, excluding any significant consideration of antitrust issues or consequences.3 However, somewhat coextensive with the movement towards deregulation, agencies took on greater responsibility for considering antitrust issues, often under some duress, leading to a model of shared judicial and agency antitrust responsibility.4Elements in the Supreme Court's 2004 Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP (Trinko) decision represent a shift away from shared judicial and agency antitrust responsibility in which courts and agencies both exercise parallel antitrust review.5 In a decision, which may be fairly characterized as largely dictum, the Supreme Court interpreted that substantial regulated industry antitrust formulation and enforcement is often best left to administrative agencies to the exclusion of the courts.6 This presumption of agency primacy was reinforced in the Court's 2007 Credit Suisse Sec. (USA), LLC v. Billing decision.7 Lower court cases have generally followed this direction, albeit with significant variations.8The Supreme Court appears to have been influenced by the view that administrative competition regulation may reduce the need for the strict judicial antitrust enforcement of pre-Trinko cases. …