Over two hundred years ago, John Adams, one of the founding
fathers of the United States of America, recognized the challenging aspects
of facts in legal proceedings. Consistent with the topics that have been
proposed for the panel discussion, this paper discusses fact-gathering in
United States Department of Justice, Antitrust Division (“Division”)
investigations, fact-finding and the distinctions between the role of facts
and expert opinion in U.S. judicial proceedings, the Division’s use of
economic experts in its investigations and at trial, and international
cooperation in matters before the Division.2 The paper focuses on civil
investigations (mergers and civil non-merger proceedings), and touches on
criminal processes as well.
The underlying goal of the Division in all its civil investigations is to
develop an accurate and complete understanding of the competitive
conditions in the industry under investigation and a full appreciation of
the competitive effects of the transaction or conduct in question, through a
process that is transparent and fair to affected parties. In the Division’s
view, procedures that are transparent and fair and that provide parties
Rachel Brandenburger, Special Advisor, International, Antitrust Division, U.S. Department of Justice,
Anne Newton McFadden, Attorney, Antitrust Division, U.S. Department of Justice, Washington D.C.
Samuel N. Weinstein, Attorney, Antitrust Division, U.S. Department of Justice, Washington D.C.