168 F. Supp. 3d 36
D.D.C.2016Background
- The United States sought entry of a stipulated Final Judgment requiring Len Blavatnik to pay a $656,000 civil penalty for alleged Hart-Scott-Rodino (HSR) Act premerger-notification violations.
- The Government argued Tunney Act (APPA) procedures do not apply because the proposed consent judgment seeks only monetary penalties, not injunctive relief.
- The court ordered supplemental briefing and held oral argument after both parties agreed Tunney Act review was unnecessary; no amici appeared.
- The Tunney Act requires public notice, a competitive impact statement, solicitation of public comments, and a judicial public-interest determination before entry of a United States-submitted consent judgment in antitrust cases.
- The Government relied on long-standing DOJ practice and historical focus on equitable consent decrees to exclude purely monetary settlements from Tunney Act review.
- The court concluded the Tunney Act’s plain text covers “any proposal for a consent judgment,” including monetary-only settlements, and therefore denied the Government’s motion without prejudice for failure to follow Tunney Act procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Tunney Act applies to a proposed consent judgment that seeks only civil penalties under the HSR Act | Tunney Act applies only to consent judgments seeking equitable/injunctive relief; monetary-only settlements are outside §16(b) | Agreed with Government that Tunney Act inapplicable to monetary-only HSR settlements | Tunney Act applies to all consent judgments submitted by the United States, including those seeking only monetary relief; motion denied without prejudice |
| Whether historical DOJ practice and legislative history support exempting HSR monetary settlements from Tunney Act review | DOJ practice for decades excluded civil-penalty-only components; Congress implicitly ratified that practice | Legislative history focused on injunctive decrees but does not override plain statutory text | Past practice and selective legislative history do not overcome the statute’s plain language; no implicit congressional ratification found |
| Whether Tunney Act’s procedural requirements are inapplicable because competitive-impact factors are irrelevant to civil penalties | Competitive-impact statement and public-interest factors are tailored to injunctive relief and thus ill-suited for penalties | Even if indirect, penalties affect deterrence and the decision not to seek injunctive relief implicates public interest; factors remain relevant | The Tunney Act’s procedures and factors can be applied coherently to monetary settlements; relevance concerns do not justify a textual exception |
| Whether Congress’s 2004 amendments implicitly ratified DOJ’s narrower interpretation | 2004 amendments reflect congressional acquiescence in DOJ practice excluding penalties from review | Amendments did not re-enact or alter the specific §5(b) language at issue and do not show broad congressional ratification | No evidence Congress considered or ratified the narrow interpretation; ratification doctrine does not apply |
Key Cases Cited
- Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (statutory interpretation starts with text)
- King v. Burwell, 135 S. Ct. 2485 (plain meaning controls absent untenable results)
- Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280 (statutory context matters)
- Bob Jones Univ. v. United States, 461 U.S. 574 (textual reliance unless it defeats statute’s purpose)
- Lorillard v. Pons, 434 U.S. 575 (congressional ratification presumption when re-enactment occurs)
- Jama v. ICE, 543 U.S. 335 (requires broad, unquestioned consensus for ratification inference)
- United States v. Microsoft, 56 F.3d 1448 (D.C. Cir. decisions motivating later statutory amendment)
- Mass. Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776 (court of appeals decision relevant to Tunney Act review)