The Justice Department’s Section 2 Report: The Widening Schism on Pennsylvania Ave.

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William Kolasky, Oct 01, 2008

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. This not only makes counseling more difficult than ever, but it also severely undermines the ability of our U.S. antitrust enforcers to play a role in shaping global antitrust policy toward single-firm conduct, an area in which many of us have long observed we already have a wide divergence between the United States and European courts.

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