In this issue:
The DOJ’s Section 2 Report & Single Firm Conduct Report
The Justice Department’s Section 2 Report: The Widening Schism on Pennsylvania Ave.
The Justice Department (“DOJ”)’s Section 2 report (“Report”) and the Federal Trade Commission (“FTC”)’s sharp reaction leave practitioners in the perplexing situation where there seems to be strong disagreement between our two federal antitrust enforcement agencies over what standards should apply to single-firm conduct under Section 2 of the Sherman Act.
The Justice Department’s Section 2 Report: In Search of A General Theory of Exclusionary Conduct
A key element in a claim for actual or attempted monopolization is that the defendant used improper means to acquire, maintain, or attempt to acquire monopoly power. The cases use a plethora of adjectives to describe this improper behavior including “exclusionary,” “predatory,” and “anticompetitive” but do not provide a general, workable definition that distinguishes the behavior that Section 2 of the Sherman Act condemns from that which it tolerates or even encourages.
The Complement Market/Final Consumer Distinction: Exclusion & Predation in the U.S. Department of Justice Section 2 Report
Most competition law falls into one of three categories. The first, cartel behavior, is relatively uncontroversial. The basics of the second, horizontal mergers, are generally accepted, but how best to implement it—efficiency defenses, welfare standards, the need for market definition, or the value of customer testimony—can be hotly contested.
The U.S. DOJ Section 2 Report: Notable Skirmish in a Holy War
The U.S. Department of Justice (“DOJ”) released a long-awaited report on Section 2 of the Sherman Act (“Report”) on September 8, 2008. Strikingly, although the Federal Trade Commission (“FTC”) and the DOJ jointly held the 2006 hearings that led to the Report, the Report was issued under the DOJ’s name alone.
Reconciling the Conflicting Views of the DOJ Report on Single-Firm Conduct
The U.S. Department of Justice (“DOJ”) report, Competition and Monopoly: Single Firm Conduct Under Section 2 of the Sherman Act (“DOJ Report”) is either (1) an extraordinarily useful and well written summary of the legal and economic analyses in the most difficult and contentious area of antitrust or (2) a set of standards that makes it nearly impossible to bring a monopolization case.
Prospects for Convergence in the U.S. and the EC Approach to Dominant Single Firms
On September 8, 2008, the United States Department of Justice (“DOJ”) issued its report on monopolization under the U.S. antitrust laws—“Competition and Monopoly: Single-firm Conduct Under Section Two of the Sherman Act” (“DOJ Report”).
DOJ Report on Section 2 of the Sherman Act: Skirmish or Schism?
Beginning in 2006, the two U.S. antitrust agencies, the United States Department of Justice, Antitrust Division (“DOJ”) and the Federal Trade Commission (“FTC”) together co-sponsored more than two years of joint public hearings on the treatment of unilateral conduct under the U.S. antitrust laws, including 29 individual panels and 119 witnesses at various hearings around the country.
Comments on the Report on Single-Firm Conduct
What to make of the Department of Justice, Antitrust Division (“DOJ”)’s recentUnilateral Conduct Report (“Report”)—does it point to a path through the Scylla and Charibdis of monopoly enforcement policy, as the current Assistant Attorney General for Antitrust portrays it, or, to borrow the words of one of his predecessors but the sentiments of a majority of the Federal Trade Commission (“FTC”), does it portend Giant Steps in the wrong direction?
The DOJ’s Single-Firm Conduct Report: Promoting Consumer Welfare Through Clearer Standards for Section 2 of the Sherman Act
On September 8, 2008, the Department of Justice (the “Department”) issued a 213-page report entitled Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act (the “Single-Firm Conduct Report” or “Report”). The Report examines whether and when certain types of single-firm conduct may violate Section 2 of the Sherman Act by harming competition and consumer welfare. The Report serves three purposes.
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