When Doha Mekki was in law school, she participated in a legal writing brief and related moot court exercise involving an antitrust issue. At the time, she thought that for her, practicing antitrust seemed “just a little too technocratic and in some cases disconnected from real and lived experiences of markets,” a sentiment she reflected on in a keynote speech honoring 2023 Antitrust Writing Award winners. Today, she admits she was wrong on both fronts. Now the principal deputy assistant attorney general for the Antitrust Division of the U.S. Department of Justice — the second-highest ranking antitrust official at the DOJ — Mekki has worked in the field since graduating from the University of Pennsylvania Law School in 2011.
On Oct. 8, she visited Harvard Law School to share her insight and passion when it comes to how she believes antitrust law can — and does — improve people’s lives. Her conversation with Professor of Practice Sharon Block, “Labor Market Competition and Workers’ Rights,” was hosted by the Center for Labor and a Just Economy. In an interview with Harvard Law Today before the event, Mekki spoke about how she believes the antitrust laws vindicate the economic liberty of all Americans and protect workers, cases the Antitrust Division has pursued, how she “fell into” antitrust work, and why students today should be as enthusiastic as she now is about practicing in the field.
Harvard Law Today: People may think antitrust is meant to benefit consumers. How does it benefit workers too?
Doha Mekki: I always say that every lawyer is a lay historian. And if you go back to the foundations of American antitrust law, its legislative history, and the deeply rooted tradition of the common law that informed the Sherman Act, you see that the drafters of the legislation were not just concerned about the private coercive power of monopolies over the necessities of life, but about how monopolies affect labor and working people as well. In the floor debate about what would become the Sherman Act, Senator Sherman — for whom our first antitrust law was named in 1890 — listed different ways that monopolies are harmful to American life. And he says, and I quote, “It commands the price of labor without fear of strikes, for in its field it allows no competitors.” But these ideas — these concerns — were not new, even in 1890. Some scholars have posited that concerns about monopolies may find expression in the time of Byzantium, the Justinian Code, and early Islamic, Babylonian, reformed Christian, and ancient Chinese thought, tradition, and practices. So, this idea that monopolies can harm important aspects of life is really quite old.
In the United States, there was a yawning gap between early antitrust enforcement in labor markets, which was often wielded against organized labor, and the more recent interest and re-acquaintance with antitrust enforcement in labor markets that began in earnest in the 2010s.
We at the Justice Department have been very busy on the labor competition front, and we are very proud of our work in this space. We are challenging illegal mergers based on labor market effects. We are obtaining criminal convictions against employers who agree to fix wages or agree not to compete for workers, which limits their mobility. We are cracking down on information-sharing schemes that suppress competition between employers to recruit or retain workers. And we are securing landmark legal precedents through our advocacy in state and federal trial courts and the federal courts of appeals. At bottom, you can see evidence of our concern about how the antitrust laws affect working people in every aspect of the Justice Department’s antitrust work.
HLT: What cases have you been involved with?
Mekki: I was tasked with developing a comprehensive labor antitrust enforcement and policy program in 2018, first as Counsel to the Assistant Attorney General and then as the Antitrust Division’s Special Counsel for Labor. I was excited to take on that project because the American dream is not possible without open, vibrant markets.
Over the last four years, the division’s staff have been very active on the labor front. One case that sticks out is a complaint that we filed against poultry processors Cargill, Sanderson, and Wayne Farms. We alleged they participated in an illegal information-sharing scheme that artificially suppressed pay for their slaughterhouse workers. The companies communicated directly but also used a consultant to serve as an intermediary to facilitate the information exchange. The poultry processing plant workers at the center of the case were already vulnerable, often facing limited job options and needing to perform dangerous but essential work. To resolve the case, the Department required the companies to commit to pay $84.8 million, collectively, in restitution for the harmed workers. In addition, the consultant who helped facilitate some of the unlawful conduct was banned from the industry and was required to cooperate in the investigation to help us obtain justice on behalf of the workers and the general public against other companies that were participating in this unlawful scheme.
We also filed an antitrust case against the NCAA’s [National Collegiate Athletic Association] transfer eligibility rule. That rule unduly restricted college athletes’ freedom to transfer between academic institutions by limiting their eligibility to participate in intercollegiate contests if they transfer more than once during their college careers. I was also really proud to work on the United States’ amicus brief in support of college athletes in the Supreme Court’s landmark antitrust decision in NCAA v. Alston. That case concerned the NCAA’s rules limiting compensation for college athletes.
On the criminal front, a company pleaded guilty to fixing wages and entering into a no-poach agreement targeting school nurses who help vulnerable children. There are so many more examples. We worked hard to build out this enforcement and policy expertise and you can see it reflected in each of the division’s core programs
HLT: You testified several years ago in front of a congressional committee and said that recent national interest in labor competition issues likely had its roots in the aftermath of the 2008 financial crisis. Why did that draw attention to the issue at the time?
Mekki: Concerns about a two-tiered recovery from the financial crisis, wage stagnation, diminished labor dynamism, and low union density, among other issues, prompted policymakers, economists, and scholars to ask harder questions about why the economy was not working well for many Americans. Some looked to antitrust for clues about how labor markets actually were functioning. Comments and reports from federal agencies and officials, including the Council of Economic Advisors at the time, supported further inquiry into monopsony power, bargaining asymmetries facing workers, and the effects of non-competes, no-poach agreements, and other forms of collusion in labor markets. Over the next few years, a growing body of labor economic research underscored these concerns, prompting even more interest in how antitrust law could help ensure open, vibrant labor markets. That is why the financial crisis strikes me as an important part of how antitrust and labor competition concerns became more prominent policy issues.
HLT: How did you end up doing antitrust work after law school?
Mekki: My first job out of law school was at a law firm in New York. There, I worked on antitrust counseling, litigation, and federal civil and criminal investigations. In 2015, I was hired into the Justice Department’s Antitrust Division, where I serve today. I grew up as a lawyer in the storied history, tradition, and legacy of this institution that Robert Jackson and Thurman Arnold built. To be an antitrust lawyer at the Justice Department is to be a lover of American history, an admirer of our economy, which is the envy of the world, and a champion of American ingenuity. It is a place filled with public servants who care deeply and passionately, as I do, about the American people. And it is where I have developed a stronger intellectual foundation about the close connections between our antitrust laws and our constitutional and democratic ideals.
HLT: How has the field evolved since you started practicing?
Mekki: Antitrust was a bit esoteric when I started practicing. Today, antitrust is resonant with people of all stripes. In my experience, people may not know as a technical matter how to define monopsony. They might not be able to describe bid rigging or algorithmic collusion to a legal level of precision. But people understand how abusive monopolies and private coercive power shape their day-to-day experiences in the market. They know that job opportunities might decrease when the two big employers in their town merge. They know what it feels like to struggle to get a call back or to make an appointment when hospitals, providers, and pharmacies consolidate. And they feel the squeeze of higher prices in airline, housing, and food markets that have been hampered by unlawful practices and abuse of market power.
HLT: What would you tell students about working in the field?
Mekki: Antitrust is a terrific practice. New assignments often require us to become expert about products and services we may never have encountered. And while many people develop niche expertise, I have been fortunate to work on a mix of civil and criminal issues, mergers and acquisitions, investigations, litigation, client counseling, competition policy, and government advocacy. It never gets boring.
I would also encourage students to consider an antitrust career in public service. Public service is such an incredible honor, and the Justice Department, in particular, has a long and storied tradition of challenging the biggest, most formidable monopolies in our history, including Standard Oil, American Tobacco, and AT&T. Earlier this year, the Antitrust Division won a landmark monopolization case against Google, where we challenged its internet search dominance and related advertising dominance.
The career staff of the Antitrust Division is comprised of the finest public servants in the federal government. Working with them to vindicate the economic liberty and opportunity of the American people is a treasured opportunity.
This interview has been edited for length and clarity.
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