In this issue:

The DOJ’s Section 2 Report & Single Firm Conduct Report

William Kolasky, Oct 1, 2008

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.

Joseph Angland, Oct 1, 2008

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.

Timothy J. Brennan, Oct 1, 2008

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


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