Since 1974, the Antitrust Procedures and Penalties Act — commonly known as the Tunney Act — has required the federal courts to review each consent decree in civil antitrust cases filed by the U.S. Department of Justice to ensure that the remedy proposed in the consent is in the public interest. The act provides the court with broad discretion to seek all of the information it needs to fulfill this obligation. While courts in a limited number of cases have used this flexibility to conduct evidentiary hearings and investigate the merits of the proposed remedy, the judicial review process has often been described as a “rubber stamp” of DOJ’s decision to settle the case. In merger cases, DOJ even allows the parties to close their transaction before the judge has approved the consent decree.

In response to the perception that judicial review was often merely a “rubber stamp,” Congress amended the Tunney Act in 2004. While the modifications were relatively minor — DOJ apparently believed that nothing had changed — the legislative history indicates that Congress intended to strengthen the court’s role in the process and provide more effective oversight of antitrust consent decrees.

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