DOJ Report on Section 2 of the Sherman Act: Skirmish or Schism?

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Douglas M. Jasinski, Daniel Kanter, Oct 1, 2008

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. On September 8, 2008, the DOJ issued a new 215-page report—Competition and Monopoly: Single-Firm Conduct under Section 2 of the Sherman Act (“Report”)—summarizing the DOJ’s views and guidance on unilateral conduct based in part on the joint public hearings as well as “extensive scholarly commentary, and in the jurisprudence of the Supreme Court and lower courts.” The FTC on the other hand, refused to endorse the Report, and publicly voiced its differences in a joint statement by three FTC Commissioners. The DOJ and FTC have skirmished several times over the last several years regarding divergent policy views. This latest dispute may just be another skirmish in a continuing healthy debate, but also could be a sign of a more serious schism that leads to stagnation, less discourse, and more confusion over U.S. antitrust enforcement policies.


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