Teddy Roosevelt, the original trust buster, “spoke softly and carried a big stick.” Modern day trust busters wield two big sticks: public and private enforcement of the antitrust laws. Both government authorities and an organized, well-funded antitrust bar aggressively enforce these laws. This article describes the interplay between public and private antitrust enforcement and shows how these two “sticks” work in tandem to keep American industry on its toes.
The two principal antitrust statutes are the Sherman Act and the Clayton Act. The Sherman Act, which outlaws anticompetitive agreements like price fixing and market division agreements and monopolization, carries criminal as well as civil penalties. The Clayton Act proscribes, among other things, merger agreements that result in a substantial lessening of competition. These statutes are enforced by the two federal enforcement agencies, the Antitrust Division of the Department of Justice (which has exclusive jurisdiction over criminal antitrust investigations) and the Federal Trade Commission, as well as state attorneys general.
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