In the News

Biden Admin’s Amicus Programme a Boon for Private Enforcement


May 7, 2024

The Biden Administration’s desire to intensify antitrust enforcement transcends its own litigation, with the Department of Justice and Federal Trade Commission making arguments helpful to private plaintiffs at a record pace.

All but two of the 51 statements of interest and amicus briefs submitted by the DOJ and FTC since President Biden’s inauguration have advanced positions in antitrust disputes beneficial to the plaintiff, according to analysis by GCR USA and Docket Navigator.

That shift in focus marks a notable increase from the Trump Administration, in which 62% of its 63 interventions in antitrust cases took positions beneficial to complainants.

. . .

Pitching the Agencies

Most statements of interest and amicus briefs do not take a formal stance on the merits of the complaint but rather zero in on particular legal questions.

But such interventions can significantly boost complaints, according to Daniel McCuaig, who advises plaintiffs in antitrust damages claims.

“Those are often the tricky questions of antitrust doctrine that courts not infrequently get wrong or at least a little bit wrong,” the Cohen Milstein Sellers & Toll partner and former DOJ attorney said.

Private litigants typically pitch the Antitrust Division to get involved – and although courts might not always side with the government’s position, they take its arguments seriously, McCuaig said.

“They come into court with more credibility than any other litigant – especially when they’re not involved in the litigation,” he added.

. . .


Plaintiffs’ lawyer McCuaig said it is risky for the DOJ or FTC to file briefs that take defendant-friendly positions.

Those briefs are on the record forever – and the government can expect litigants to throw them back at it if they conflict with a future case. Meanwhile, the antitrust defence bar is not necessarily enthralled with the Biden Administration’s use of amicus briefs

Read Biden Admin’s Amicus Programme a Boon for Private Enforcement.