Published on Feb 01, 2024
Randy Stutz, the new president of the American Antitrust Institute, said today that he plans to focus the venerable advocacy group’s energy on supporting enforcers’ deterrence capabilities, strengthening plaintiffs’ chances of winning in court and encouraging more litigation against concentrated labor markets.
Of particular concern is the weakening of enforcers’ ability to effectively deter antitrust violations, said Stutz in an exclusive interview with The Capitol Forum on his first day at AAI’s helm. He highlighted the Supreme Court’s decision in AMG Capital Management v. FTC, in which the agency lost its authority to seek monetary relief for restitution or disgorgement. Without the threat of a large fine, companies have less incentive to obey the law, he said.
He also said the increasing attacks on the FTC’s constitutional authority to conduct its trials in its administrative process and the ever-higher bar in certifying class actions as potentially weakening litigants ability to deter violations.
“We’ll be very engaged in the courts, working to improve legal doctrine,” Stutz said. “We’ll be engaged on policy in a wide variety of areas, as well.”
As the agencies increasingly probe allegedly anticompetitive behavior in labor markets, Stutz stressed the importance of continuing to treat such violations as important as corporate conduct that harms consumers.
Stutz became AAI’s president after serving for a year as an adviser to the FTC’s Office of Policy Planning. Prior to his stint at the agency, he spent 13 years at AAI in various roles, including vice president, director of special projects and director of legal advocacy.
The new AAI president’s agenda is ambitious. In addition to helping to beef up the agencies’ deterrence powers, the group will be vocal in supporting the FTC’s authority to enforce against unfair methods of competition, he said. That view is in line with President Joe Biden’s July 2021 executive order that tasked a number of executive branch agencies with using their powers to improve competition in the U.S. economy, Stutz said.
“AAI is very supportive of the Biden Administration’s whole-of-government approach to promoting competition,” Stutz said. “That’s something where we’re going to try to be both an ally and a watchdog to try to encourage regulatory agencies to factor in competition considerations and to be working together and thinking about healthy markets.”
Two other major priorities for the group, Stutz said, are stopping the erosion of good case law under the Sherman Act’s Section 2 and strengthening the agencies’ ability to go after vertical and conglomerate mergers. Recent court decisions have limited viable litigation against monopolists by confining some of it to stringent refusal-to-deal standards, he said. And enforcers have faced difficulties in stopping vertical and conglomerate mergers they find anticompetitive, increasing the importance of clearer analysis of the business relationships at play, according to Stutz.
The FTC last year lost a pair of cases based in part on those theories of harm: Microsoft/Activision and Meta/Within. The agency is appealing the first decision.
Before Stutz’s appointment, AAI had been without a president since his successor, Diana Moss, departed the group in the late summer to create a competition-focused arm of the Progressive Policy Institute. AAI Vice President Kathleen Bradish led the organization in the interim.
Returning to the group “feels like coming home,” Stutz said. “A big part of what I will do and what Kathleen will continue to do is try to be thought leaders in attracting attention to what we think are the most critical issues.”
Time in government: Stutz’s experience at the FTC may give him, and the organization, a leg up on future advocacy, said Robert Lande, one of the group’s founding directors and now a member of its board.
“He knows the people at the FTC and the way they work,” Lande said. “He’ll be able to work better with them and in cooperation with them to help further the public interest approach to antitrust.”
Stutz said he found his time at the agency “was incredibly heartening.”
“It gave me an appreciation for some of the decision-making that has to take place at the agencies, specifically with respect to resource allocation,” he said. “One thing I think I’ll bring with me in thinking about AAI’s advocacy is really understanding how to make those difficult choices about where to focus precious resources, and to be sort of mindful of that in how we advocate to the agencies.”
Educating judges. One project that Stutz could funnel some of those resources to is educating judges on the federal government’s antitrust enforcement powers. DOJ and the FTC have found some of their efforts thwarted by federal judges skeptical of the administration’s attempts to expand enforcement with novel or little-used legal arguments.
Judicial education on competition law isn’t a new idea. Conservative groups for years have run annual gatherings for judges, many of whom rarely preside over an antitrust merger or conduct case. AAI and Stanford University in 2010 put on a multidisciplinary antitrust seminar for judges but couldn’t continue the program due to its high cost and logistical requirements, he said.
But Stutz said he was interested in reviving the program due to “a real need for balance” in judicial education.
AAI has been a leading pro-enforcement advocacy group since its founding by Albert Foer in the late 1990s. It holds regular conferences, files amicus briefs urging courts to adopt more aggressive rulings in antitrust cases and conducts research into a variety of enforcement areas.
For nearly two decades, the group was the pro-antitrust enforcement institution in Washington.
“We were a lone voice in the wilderness when AAI was founded,” Lande said. “There were many prominent, well-funded conservative groups at the time, as there still are, but AAI was the only pro-enforcement group at the time.”
AAI now risks being overshadowed by newer organizations – such as the Open Markets Institute and the American Economic Liberties Project – that have used political allies to help speed enforcers’ adoption of their ideas. AAI appeared reluctant to work too closely with its newer peers, instead pursuing its own programming.
But that attitude is changing. After Moss departed, AAI’s flagship podcast hosted an episode featuring members of Open Markets and AELP.
Going forward, “I absolutely want to work with all the like-minded groups that are out there,” Stutz said. Even if they have different approaches or views on some issues, “there’s far more in common than there is not,” he added.
