September 25, 2019
Joel Mitnick comments on the rationale offered by the U.S. Department of Justice for its antitrust investigation into automakers’ emissions deal with California.
Excerpts from “DOJ Defends Emissions Deal Probe, But Is It Blowing Smoke?,” Law360, September 25, 2019:
DOJ antitrust chief Makan Delrahim insists the inquiry is driven by honest concern that the car companies may have colluded in reaching a deal on tighter emissions standards with Golden State regulators.
Nevertheless, Joel Mitnick, a partner at Cadwalader Wickersham & Taft LLP and a former Federal Trade Commission trial attorney, told Law360 the emissions investigation is just the latest issue that has raised the appearance of political influence at the Justice Department.
“When there's one data point, that's something. But when your graph starts to get filled with lots of data points all in a trend line, you can't ignore it,” Mitnick said.
Petitioning the government and trying to influence government policy are generally protected by the so-called Noerr-Pennington doctrine, which is rooted in the First Amendment's free speech rights.
While some people view Noerr-Pennington as providing an exemption from the antitrust laws, Mitnick said that the courts have actually found petitioning activity is simply beyond the reach of the statute. He said this means the DOJ may not even have the authority to investigate the emissions agreement.
“The Supreme Court has held that the antitrust laws were not intended to apply to conduct that is protected under the First Amendment,” Mitnick said. “That means the DOJ doesn’t even possess subject matter jurisdiction to investigate such activity.”
Mitnick said the DOJ's pursuit of the probe “leaves you making the only reasonable inference that you can make, which is that there is a non-law-enforcement motive for bringing the investigation.”