contagious efficiency: the growing reliance on us-style antitrust settlements in eu law

53 Pages·2008·0.4 MB·English

CONTAGIOUS EFFICIENCY:
THE GROWING RELIANCE ON U.S.-STYLE ANTITRUST
SETTLEMENTS IN EU LAW

George Stephanov Georgiev*

This paper analyzes the impact of the introduction of U.S.-style antitrust settlement
procedures in EU law, which occurred in 2004 as part of an ambitious antitrust
modernisation program. After documenting the lack of a settlement tradition in EU law or
the legal systems of EU member states, I argue that the new procedures were transplanted
without sufficient tailoring. Relying on lessons from the longstanding U.S. experience
with antitrust settlements and on original evidence from the EU’s own approach since
2004, I analyze the effects from the introduction of settlements at three interconnected
levels of antitrust enforcement: at the EU level, at the member state level, and at the level
of transatlantic antitrust cooperation. I find that the use of settlements leads to distortions
in enforcement incentives, that it threatens to shift the EU system towards further
bureaucratization, and that it is interfering with many of the original goals of the antitrust
modernisation program.

* J.D., Yale Law School, June 2007. For helpful comments and discussions, I thank Alvin
Klevorick, Peter Oliver, Russell Pittman, Susan Rose-Ackerman, and James Q. Whitman. Parts of
this project were funded by research grants from the Yale EU Studies Program and the Yale
Center for Law, Economics, and Public Policy. An expanded version of this paper will appear as
an article in the December 2007 issue of the Utah Law Review. Except where otherwise noted, the
paper describes institutional practices and the state of the law as of August 31, 2007. Any errors or
omissions are my own. Contact information: [email protected].
TABLE OF CONTENTS:

I. INTRODUCTION........................................................................................................1
II. THE EVOLVING STRUCTURE OF THE EU ANTITRUST REGIME................4
A. THE ORIGINAL DESIGN OF EU ANTITRUST LAW...............................................................5
B. MODERNISATION THROUGH TAILORED TRANSPLANTATION.............................................7
1. The Road to Modernisation....................................................................................8
2. The Modernisation Package and Its U.S. Sources................................................10
3. Tailored and Untailored Legal Transplants..........................................................12
III. ANTITRUST SETTLEMENTS IN EU LAW: HISTORY, SOURCES, AND
CURRENT USE.........................................................................................................16
A. SOURCES IN NATIONAL AND EU LAW.............................................................................16
B. AD HOC SETTLEMENTS UNDER REGULATION 17/62........................................................18
C. THE COMMISSION’S USE OF U.S.-STYLE SETTLEMENTS SINCE 2004..............................20
1. Legal Basis and U.S. Parallels.............................................................................20
2. The Commission’s Application of the New Provisions.......................................23
IV. ANTITRUST SETTLEMENTS IN U.S. LAW.........................................................28
A. THE HISTORY AND STRUCTURE OF THE U.S. FRAMEWORK.............................................28
B. THEORETICAL VIEWS ON SETTLEMENTS IN U.S. LAW.....................................................33
V. EFFECTS OF THE RELIANCE ON U.S.-STYLE ANTITRUST
SETTLEMENTS IN EU LAW: THREE DIMENSIONS.......................................34
A. ANTITRUST ENFORCEMENT AT THE EU LEVEL...............................................................34
1. Diminished Transparency....................................................................................34
2. Reduction of Legal Certainty...............................................................................37
3. Systemic Implications..........................................................................................38
B. ANTITRUST ENFORCEMENT AT THE MEMBER STATE LEVEL...........................................44
C. TRANSATLANTIC ANTITRUST COOPERATION..................................................................45
VI. A CAUTIONARY NOTE...........................................................................................47
A. CONTAGIOUS EFFICIENCY AND UNTAILORED TRANSPLANTATION.................................47
B. REVISITING THE GOALS OF MODERNISATION..................................................................48
C. RECALIBRATING BENEFITS AND COSTS...........................................................................50
VII. CONCLUSION...........................................................................................................51
Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law 1

I. INTRODUCTION

The European Commission, the executive arm of the European Union, has had the
power to enforce the antitrust provisions of the EU Treaty since 1962,1 but procedures for the
settlement of antitrust cases were not a part of EU legislation until May 1, 2004, when Council
Regulation 1/2003 entered into force.2 For the 42 intervening years, relatively few EU antitrust
investigations ended with the extraction of informal commitments rather than by full-fledged
adjudication, and the procedures governing those settlements were entirely ad hoc. This
marked a key difference between the EU antitrust enforcement regime and that of the United
States, where over 95 percent of antitrust cases are settled via consent decrees. A distinct
invention of American law, consent decrees do not represent an adjudication on the merits, but
instead close a case by negotiating certain concessions and by noting that the party under
investigation denies any substantive allegations of wrongdoing. In the United States,
settlements have come to be viewed as one of the cornerstones of the modern regulatory state;
they represent a reflection of the need for a balance between full-fledged adjudication and
administrative efficiency.3
The set of procedures governing antitrust settlements in the European Union was
introduced as part of a much larger overhaul of EU competition law,4 usually referred to as
“modernisation.”5 During the forty months in which the new settlement mechanism has been
available, the European Commission has employed it in thirteen cases, and there are indicators
suggesting that settlements will become more widespread in the future. The most commonly
cited advantages of the new procedure are all motivated on efficiency grounds; they include
the better use of limited administrative resources, the ability to conclude open investigations in
a much quicker and less procedurally constrained fashion, and availability of more creative
and effective remedies.6 Despite such advantages, however, the European Commission’s
application of the settlement procedures thus far raises a number of questions about the
desirability of settlements and about their interaction with other aspects of EU competition

1 Council Regulation (EEC) No. 17/62, 13 J.O. 204 (1962), O.J. Eng. Spec. Ed. 1959-62, at 87.
2 Council Regulation (EC) No. 1/2003 on the implementation of the Rules on Competition laid down in
Articles 81 and 82 of the Treaty, 2003 O.J. (L 1) 1. The Regulation uses the term “commitments”
instead of settlements. See Part III(C) infra.
3 See, e.g., David Luban, Settlements and the Erosion of the Public Realm, 83 GEO. L.J. 2619 (1995)
(arguing that an accelerated adjudication rate is unsustainable because of the confusion and bad law
that would result).
4 The paper uses the terms “antitrust law” and “competition law” interchangeably.
5 See Mario Monti, EU Competition Policy After May 2004, in 2003 ANNUAL PROCEEDINGS OF THE
FORDHAM CORPORATE LAW INSTITUTE 403-13 (Barry Hawk ed., 2004).
6 See Christopher J. Cook, Commitment Decisions: The Law and Practice Under Article 9, 29(2)
WORLD COMPETITION 209 (2006).
Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law 2
law.7 The European Court of First Instance (CFI) began to answer some of these questions in a
July 2007 ruling,8 but the vast majority of them have not been examined on a systemic level or
in a comparative dimension.
The newly-introduced settlement provisions, along with the vast majority of legal
innovations in the 2004 modernization package bear remarkable resemblance to equivalent
provisions in U.S. antitrust law. Even though no scholar has yet identified them as such, they
are legal transplants, products of a process defined as “the moving of a rule or system of law
from one country to another.”9 U.S. antitrust law was an attractive source of borrowing
because of its perceived effectiveness and its closer alignment with modern economic theories
placing efficiency at the center of competition policy. A number of developments in EU law
prior to the introduction of the modernisation package suggested that the EU antitrust regime
should move precisely in the direction of greater efficiency.10
Most legal transplants introduced as part of the modernisation program were subjected
to advance discussion and were carefully tailored to fit the structural and historical
idiosyncrasies of EU law. For various reasons, a few transplants were imported without much
careful forethought; the new settlement provisions belong to this second group. There, the lure
of greater administrative efficiency might have blinded the Commission into proposing legal
rules that are poorly-suited to the EU context and that will have far-reaching negative effects
on several levels.
The lack of tailoring ignored the longstanding U.S. experience with settlements. Over
the past one hundred years,11 settlements have become a key element of the U.S. antitrust
enforcement regime and have commanded both praise and criticism. Even though settlements
in general have sometimes been condemned as “a capitulation to the conditions of mass
society [that] should be neither encouraged nor praised,”12 in the antitrust context, they have
helped strike a dynamic and useful balance between public and private enforcement. The
current U.S. settlements framework is the product of this longstanding experience. It started as

7 For ease of reference and consistent with common practice, this paper uses “European Union law”
instead of “European Community law,” even though antitrust law technically falls in the latter
category.
8 See Case T-170/06, Alrosa v. European Commission, Judgment of the Court of First Instance of July
11, 2007; available at www.curia.eu.int [hereinafter Court of First Instance, Alrosa Judgment]. An
appeal is pending at the ECJ (Case C-441/07).
9 ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 22 (2d ed. 1993)
[hereinafter WATSON, LEGAL TRANSPLANTS].
10 For the purposes of this paper, the emphasis on efficiency in the regulatory realm indicates a general
preference for modes of policymaking and adjudication that produce the greatest economic benefits
at the lowest possible costs. Scholars, regulators and practitioners sometimes use “efficiency” more
loosely to refer to the swiftness or effectiveness of regulation.
11 The first U.S. antitrust consent decree was entered in 1906 in United States v. Otis Elevator Co., 1
DECREES & JUDGMENTS IN FED. ANTITRUST CAS. 107 (N.D. Cal. 1906).
12 Owen M. Fiss, Against Settlement, 93 YALE L. J. 1073 (1984).
Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law 3

an unstructured system that gave the Department of Justice virtually unlimited discretion.
Following a set of controversies in the 1970s, it evolved to incorporate greater procedural
safeguards. Nonetheless, the Department of Justice and the Federal Trade Commission today
enjoy substantial autonomy, despite the detailed statutory framework. The European
Commission copied both the specific U.S. procedures and the mode of administration
employed by the U.S. agencies, but failed to consider many of the attendant idiosyncrasies and
performance problems. More importantly, it did not appreciate the fact that the U.S.
framework embodies a tradeoff between the more obvious efficiency benefits of settlements
and their (substantial but often hidden) costs.
Regardless of their potential costs, the new EU settlement procedures have been very
attractive for the European Commission and for companies under investigation. This has led to
a level of use that has surpassed the Commission’s initial expectations and to a growing
reliance on settlements in lieu of other, more formal and burdensome procedures. The effects
from these changes have occurred along three dimensions: within the EU competition law
framework, within the national antitrust regimes of individual EU member states, and within
the framework of transatlantic antitrust cooperation. The real and potential impacts of
settlements are substantial on all three levels. Within the EU antitrust system, they have led to
distortions in the Commission’s enforcement priorities and incentives as well as to reductions
in legal certainty and transparency. More dangerously, settlements have set the stage for a
systemic shift towards the further bureaucratization of the EU antitrust framework.
In their interaction with the antitrust regimes of national member states, settlements
are working to reverse the decentralization drive that was a key goal of the modernisation
program. In so doing, they are also suppressing the emergence of a viable system of private
antitrust enforcement across the EU. Finally, on the level of transatlantic antitrust cooperation,
settlements could lead to a need for deeper cooperation and, under certain conditions, to more
frequent conflicts between the antitrust authorities of the two jurisdictions.
From the outset, I should emphasize that this paper does not take the position that an
emphasis on administrative efficiency or the consideration of economic efficiency in antitrust
enforcement is wrong or undesirable. To the contrary, both of these manifestations of
efficiency are a hallmark of good government and a crucial element of today’s democratic
imperative. The “efficiency” of U.S. antitrust enforcement is called “contagious” because the
U.S. system has been so successful on many levels and has come to be viewed as a model that
should be emulated unconditionally. The claim I put forward is fairly specific: that the
wholesale importation of antitrust settlement provisions from the U.S. system without the
required procedural and substantive tailoring has started to have negative effects on the EU
antitrust enforcement regime.

The paper proceeds as follows: Part II presents the evolving structure of antitrust
Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law 4
adjudication in EU law and identifies the specific elements of the modernization package that
were borrowed from the United States, with or without the requisite tailoring. This is the first
in-depth account of the parallels between the newly-modernized EU regime and the U.S.
antitrust regime and also the first analysis of the modernisation program as a process of
tailored transplantation. Part III considers the prior use of antitrust settlements under EU law
and uncovers a move towards a greater reliance on settlements in the national systems of
several EU member states. Part III also details the specific parallels between EU and U.S.
settlement provisions, and then uses original data to analyze the Commission’s approach to
settlements since their introduction in May 2004. Part IV turns to the United States and
reviews the longstanding American experience with antitrust settlements, paying particular
attention to the functional equivalents of problems that might arise in the EU. Part V analyzes
the likely effects of the EU’s growing reliance on U.S.-style antitrust settlements upon three
closely intertwined systems of antitrust enforcement: the EU’s own competition law regime,
the regimes of individual EU member states, and the intergovernmental U.S.-EU antitrust
system. Part VI suggests a way to evaluate the desirability of settlements in EU law that takes
into account their unique costs and benefits and the original goals of the modernisation
program. Part VII concludes.

II. THE EVOLVING STRUCTURE OF THE EU ANTITRUST REGIME

The enforcement of competition law at the European level is currently considered the
second most developed of the EU’s common policies and the one with the greatest impact on
firms both inside and outside of the common market.13 EU competition law is based on two
broadly-drafted Articles in the Treaty of Rome14 and has developed over the years through a
number of more specific Regulations and Notices issued by the Council and the Commission,
as well as through the antitrust decisions of the Court of First Instance and the European Court
of Justice (ECJ).15 What began in 1962 as a modest regime primarily intended to remove
industrial practices standing in the way of the common market has evolved into a complex
body of law that is increasingly concerned with the maximization of consumer welfare and
that frequently has extraterritorial implications. As a result of the 2004 modernisation
program, the current regime contains many rules and policies that were borrowed from U.S.
law, with or without tailoring to the specific EU context.

13 JOSEPHINE STEINER & LORNA WOODS, EC LAW 395 (8th ed. 2003) (agricultural policy identified as
most developed).
14 Articles 81 and 82 (originally 85 and 86) of the Treaty Establishing the European Economic
Community (Mar. 25, 1957) [hereinafter EEC Treaty].
15 Throughout the paper, I use “the courts” to refer to both the CFI and the ECJ.
Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law 5

A. The Original Design of EU Antitrust Law

The structural foundations of EU antitrust law were laid down by Council Regulation
17/62, which established the procedural framework for enforcing the EEC Treaty’s general
prohibitions against restrictive agreements and cartels (Article 81(1)), and the abuse of a
dominant market position (Article 82).16 The origins of these Treaty provisions have been
traced by some to equivalent provisions in U.S. antitrust law;17 an alternative view suggests
that European competition law was borne out of the ideas of European politicians and
intellectuals, and particularly the members of the German ordoliberal school of economic
thought.18
The drafters of Regulation 17/62 had to choose between two approaches to
implementing Article 81. Under the first one, the article would apply to all agreements which
contained some competitive restriction as part of a larger scheme intended to be pro-
competitive. To gain legality, such agreements would have to rely on the exemptions available
in Article 81(3). Under the second approach, the Commission would have to look only for
“bad agreements” and then use a U.S.-style “rule of reason” analysis to determine their
legality in light of the totality of their terms and purposes. The Regulation adopted the former
approach and thus created an enforcement regime which commentators have described as
“very cumbersome” and involving “quirky procedural features.”19 Companies were required to
“notify” to the Commission all practices which were “restrictive” within the meaning of
Article 81(1), and which therefore relied on the four cumulative exculpatory provisions
contained in Article 81(3).20
The benefit of such notification was that it exempted the parties to an agreement from
fines for conduct that was consistent with the notified agreement, but that was subsequently
found to infringe EU antitrust law.21 The Commission of course did not (and could not) look
into all of these notifications. Instead, it issued individual exemption decisions (for specific
companies), and block exemption regulations (for entire industries). The actual performance
of this regime ultimately did not provide companies with the full legal certainty contemplated
by the Regulation. Because the issuance of specific exemptions was procedurally burdensome,

16 EEC Treaty, supra note 14.
17 See, e.g., Joel Davidow, The Worldwide Influence of United States Antitrust, 35 ANTITRUST BULL. 603
(1990).
18 David J. Gerber, Constitutionalizing the Economy: German Neo-liberalism, Competition Law and the
“New” Europe, 42 AM. J. COMP. L. 25, 71-74 (1994).
19 Ian Forrester, Modernization of EC Competition Law, 23 FORDHAM INT’L L.J. 1028, 1030-34, 1037
(2000).
20 Regulation 17/62, supra note 1, Article 4(1).
21 Id., Article 15(1).
Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law 6
it was reserved only for flagship cases.22 In a sense, the Commission’s formal intervention was
legally indispensable, but practically unavailable, and so companies sought to rely on informal
comfort letters.
These “shortcomings” were politically tolerable because the primary concern of the
Commission during the early years of EU antitrust enforcement was not the promotion of legal
certainty or economic efficiency, but rather the creation of an internal market, the arch-goal of
European integration.23 In line with this, during the first three decades of the EU competition
law regime the Commission’s docket was dominated by cases involving goods distribution
restrictions and arrangements that hinder cross-border selling activities by traders.24
Competition was used as a tool for economic integration, even at the cost of neglecting some
traditional areas of antitrust enforcement such as fighting cartels.25 Despite its heavy
workload, the Commission warded off proposals for reform that would have allowed national
competition authorities and courts to duplicate some of its functions, out of fear that this
would produce inconsistencies across member states.26
The political goals of early EU competition law were openly acknowledged by
Commission officials and recognized by academic commentators. The 1987 Report on
Competition Policy listed “broad political significance” among the three criteria used by the
Commission in setting enforcement priorities.27 Even in the early 1990s, the then-
Commissioner for Competition noted that “[t]he ‘Chicago School’ approach currently in
favour in the USA is not directly relevant to EC competition policy. Chicago does not need to
worry about creating a single market. Rather, it presupposes the existence of an integrated
market.”28 Evaluated with regard to the goal of creating a common market, the original model
was a success. A number of protectionist national restrictions and market-sharing agreements
were struck down and companies were ensured market access across the EU.
The 1989 Merger Regulation was among the first major signs of the evolution of EU
competition law. In part modeled after the U.S. regime set up by the 1976 Hart-Scott Rodino
Act,29 the Regulation imposed mandatory pre-merger notification requirements for certain
large transactions and empowered the Commission to investigate and block mergers that

22 Forrester, supra note 19, at 1032.
23 The Single European Act defines the “internal market” as “an area without internal frontiers in which
the free movement of goods, persons, services, and capital is ensured in accordance with the
provisions of the Treaty.” Treaty of the European Union, Article 14.
24 See, e.g., Joined Cases 56/64 & 58/64, Establissements Consten SARL & Grundig-Verkaufs-GmbH v.
Commission, 1966 E.C.R. 299.
25 Forrester, supra note 19, at 1034.
26 Id., at 1036.
27 EUROPEAN COMMISSION, XVII REPORT ON COMPETITION POLICY (1987), at ¶9.
28 SIR LEON BRITTON, EUROPEAN COMPETITION POLICY: KEEPING THE PLAYING-FIELD LEVEL 3 (1992).
29 15 U.S.C. § 18a (2007).
Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law 7

would create or enhance a dominant market position.30 In contrast to the enforcement of
Articles 81 and 82 under Regulation 17/62, the Merger Regulation allowed the antitrust
authority to dispose of cases in a speedy manner and was therefore branded as a success. As
one commentator noted, “the Commission showed that it was able to deliver on time and with
clarity scores of decisions in a wide variety of industries to the general satisfaction of the
business community.”31
In sum, from its very inception EU competition law was concerned not only with
economic, but also with political and social goals, and was therefore distinct from U.S.
antitrust law. In the early years, the conceptual differences between the two systems were
acknowledged, but were not viewed as a problem and did not give rise to pressures for
international harmonization or the introduction of specific reforms in either model. This
“peaceful coexistence” began to wither away with the rise of transatlantic mergers and global
cartels in the 1990s. In a few landmark cases, the two regimes produced different outcomes on
virtually identical facts,32 thereby transforming the dissonance between the U.S. and EU
antitrust models from a purely academic question into a practical matter carrying serious
economic implications.

B. Modernisation Through Tailored Transplantation

In 1999, the European Commission published a White Paper on the Modernisation of
the Rules Implementing Articles 81 and 82 of the EC Treaty33 and set in motion a wide-
ranging program for the substantive, procedural, and institutional reform of the EU antitrust
enforcement regime. The precise content of the modernisation package suggests that the EU
has engaged in a process I call tailored transplantation: the transposition – after some
adjustment – of procedural and substantive elements from U.S. law onto EU competition law.
Thus far, the literature has described modernisation as a process of harmonization or
convergence, rather than transplantation.34 Such a characterization is hardly incomprehensible,

30 Council Regulation No. 4064/89 on the Control of Concentrations Between Undertakings, 1989 O.J.
(L 257) 90.
31 Forrester, supra note 19, at 1038.
32 The first in a series of examples in the merger area was the 1997 Boeing/McDonnell Douglas merger
(approved by the Commission but only after the imposition of stringent behavioral remedies). In the
non-merger area, compare the Second Circuit’s finding in Virgin Atlantic v. British Airways, 257 F.3d
256 (2001) (incentive agreements and fidelity rebates not an antitrust violation), with the CFI’s
judgment in Case T-219/99, British Airways v. Commission, 2003 E.C.R. II-5917 (holding that the
same fidelity rebates are illegal).
33 European Commission, White Paper on Modernisation of the Rules Implementing Articles 85 and 86
of the EC Treaty, COM (99) 101 Final (Apr. 1999), 1999 O.J. (C 132) 1 [hereinafter Modernisation
White Paper].
34 See, e.g., Andre Fiebig, Modernization of European Competition Law as a Form of Convergence, 19
TEMP. INT’L & COMP. L.J. 63 (2005).
Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law 8
since borrowing from U.S. law amounts to (or – in the very least – can lead to)
“Americanization,” a process that is controversial in many quarters of the European Union.
Yet, true harmonization occurs when competition authorities jointly develop new policies for
cooperation or coordination.35 The modernisation of EU competition law, by contrast, was a
process where substantive, procedural, and administrative rules already in existence in the
United States were transplanted into EU law in order to reform the antitrust enforcement
regime. The United States did not change its legal rules to meet the EU halfway, something
that would be required for true convergence or harmonization to obtain.36 This distinction is
not merely semantic; it is crucial to understanding the evolution of the EU antitrust regime. If
modernisation is viewed as a process of legal transplantation from U.S. law (rather than
convergence or harmonization), the roots of specific innovations can be traced. This in turn
enables the use of the U.S. experience to analyze the effects from the introduction of U.S.-
style settlements into EU competition law.
The modernisation package has been in place for slightly more than three years and it
is still defining its shape as the various transplants, including U.S.-style settlements, work
their way through the Commission’s bureaucratic machine, the CFI and the ECJ, member state
competition authorities, and member state national courts. Despite the structural differences
between the U.S. and the EU legal systems and the large number of innovations introduced
into EU law simultaneously, the tailoring approach adopted by the Commission suggests that
the process would, on the whole, lead to improvements in the EU antitrust enforcement
regime.

1. The Road to Modernisation

The reasons for the introduction of the modernisation package were not limited to the
emerging awareness of the potential clashes with the U.S. antitrust regime in high-profile
cases, noted above. Rather, two separate manifestations of “efficiency” became a source of
much discussion within the EU antitrust community: (1) the efficiency of the enforcement
system, measured by its success in stymieing anti-competitive practices, and (2) economic
efficiency as a goal of competition policy. Within both contexts, the United States was viewed
as a reference point and, indeed, as a model worth emulating.
The EU efficiency discourse took place on multiple levels. In Brussels, specific
criticisms of the original enforcement regime increasingly focused on the excessive
compliance burden imposed by the formulaic structure of Article 81 analysis (evaluated

35 See, e.g., EC-U.S. Agreement on the Application of Their Competition Laws, 30 I.L.M. 1487 (1991);
U.S.-EC Best Practices on Cooperation in Merger Investigations (2002).
36 The only example of U.S. “learning” from the EU involves discussions at the FTC to start publishing
reports at the close of an investigation, even if no legal proceedings are brought. This is something
that the Commission has long done.