William Stallings, Jul 28, 2013
Regulated industries present challenges for antitrust enforcement, including complex products and fact patterns, difficult theories of liability, and, at times, limited remedial options.
One of the more demanding challenges involves the question of when regulation may displace the antitrust laws. The debate on this issue is as old as the Sherman Act itself and continues to this day, with recent Supreme Court cases refining the contours of the relationship between antitrust and sectoral regulation.
The Antitrust Division of the United States Department of Justice has a long history of enforcing the antitrust laws in regulated industries, complementing regulatory structures to protect against anticompetitive conduct that harms consumers. This history is particularly evident in the highly-regulated electricity sector2, in which the Antitrust Division has asserted – and the courts have recognized – an important role for governmental enforcement of the competition laws.
Recent enforcement activity builds on this history, demonstrating the Antitrust Division’s continued willingness to pursue novel liability theories and unprecedented remedies to address anticompetitive harm in the electricity sector.