If this were not enough, according to Judge Sporkin, a Tunney Act court may reject a decree both because the government has not Page 6 brought the case that the court would like brought or has not required a defendant to surrender competitive advantages that did not result from the violations alleged and which are not necessary to excise in order to craft an effective antitrust remedy for those violations. A defendant confronted with the choice of litigating against the government or acceding to these demands clearly would find the former more inviting. As a consequence, as long as Judge Sporkin's decision stands, scarce government resources likely will be wasted litigating cases that it otherwise would settle and settle appropriately, and those resources will not be available to investigate or prosecute other antitrust offenses. Obviously, no remedy can repair the resulting harm to the public interest. Thus, the public has an unusual and compelling interest at stake.
Antitrust enforcement serves the public interest.
In addition to the above, the United States notes that it perfected its notice of appeal the day after Judge Sporkin's order was entered. The United States, moreover, is prepared to submit its opening brief within 21 days from the entry of a briefing order. In sum, the Tunney Act does not authorize a court to perform the Executive function of deciding whether the government should Page 7 have brought a different antitrust case. Judge Sporkin's contrary ruling raises the specter that, when an antitrust defendant negotiates a proposed consent decree with the Division, it will do no more than open up the entire range of that party's conduct to judicial scrutiny. The court was wrong, its errors are potentially devastating to efficient enforcement of the law, and expedited review is essential.