In reversal, DOJ now targeting monopolization

A struggle is shaping up for the heart and soul of § 2 of the Sherman Act — that portion of the U.S. antitrust law that deals primarily with attempts to monopolize and actual monopolization. In recent years the U.S. Supreme Court has affectionately embraced unilateral conduct by dominant firms, lauding the stimulating effect of efforts to gain monopoly and even its actual achievement. In contrast, the Obama administration’s Antitrust Division of the Department of Justice (DOJ), supported by the Federal Trade Commission (FTC), has clearly signaled its intention to enforce § 2 more rigorously. In her first speech as head of the Antitrust Division, Christine Varney disavowed the Bush administration’s enforcement priorities announced in the 2008 Report “Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act.” The FTC was well out in front, inasmuch as a majority of the commissioners had publicly dissented from the report when it was issued.

Although the prevailing view may depend on the politics of the Supreme Court during the next few years, there is a sense in Congress that U.S. antitrust is out of step with competition policy in the rest of the world. On Sept. 18, 22 congressmen wrote to the heads of the FTC and DOJ to express their “increasing concern…about developments in international competition policy, how the European Commission (EC) is shaping the global competitive environment, and the impact these developments are having on American companies.” Change is in the air.