Keeping Rufo in Its Cell: The Modification of Antitrust Consent Decrees After Rufo v. Inmates of Suffolk County Jail

In Rufo v. Inmates of Suffolk County Jail, the Supreme Court determined that that parties seeking to modify institutional reform consent decrees need demonstrate neither “grievous wrong” nor that the decree’s
purposes have been fully achieved. Instead, the Court held, moving parties are required to show only that a “significant change in circumstances warrants revision of the decree.” Because the consent decree in Rufo specifically involved institutional reform, lower courts are divided over the extent to which Rufo‘s more flexible standard should apply beyond the institutional reform setting. If courts apply Rufo literally, antitrust enforcement agencies, which currently settle more than seventy percent of their cases via consent decree, likely will become reluctant to enter into consent decrees. Further, in light of a recently implemented antitrust enforcement policy that generally limits consent decrees to ten years, and antitrust defendants’ already powerful incentives to settle via consent decree, the flexible Rufo standard is unnecessary and inappropriate in the antitrust context. Finally, several stark differences between institutional reform and antitrust litigation indicate that the rationales underlying Rufo are not applicable in the antitrust context.