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Janet L. McDavid, Jean-Michel Coumes, Oct 1, 2008
On September 8, 2008, the United States Department of Justice (“DOJ”) issued its report on monopolization under the U.S. antitrust laws—“Competition and Monopoly: Single-firm Conduct Under Section Two of the Sherman Act” (“DOJ Report”). The Report was based largely on joint hearings undertaken by DOJ and the Federal Trade Commission (“FTC”) (collectively “the agencies”) from June 2006 to May 2007 with the aim of exploring treatment of single-firm conduct under the U.S. antitrust laws. Numerous practitioners, economists, and enforcers participated in these hearings.
It was generally expected that the agencies would issue a joint report, but it is now clear that the agencies’ views diverged, both practically and substantively. The DOJ Report sets out DOJ’s current Section 2 enforcement policy both generally and as it relates to certain specific conduct, including predatory pricing, predatory bidding, loyalty discounts, tying, bundling, and exclusive dealing. At least three FTC Commissioners believe that the DOJ Report is a “blueprint for radically weakened enforcement of Section 2 of the Sherman Act.” These Commissioners criticized the DOJ Report, saying that they expected,
a Report that would identify outstanding issues in Section 2 enforcement; provide neutral and balanced illustrations of the conflicting positions that have been taken on these issues; and suggest topics for further study to resolve the debate.
FTC Chairman Kovacic also seems to have envisioned a different end product, specifically,
a DOJ/FTC report on the unilateral conduct deliberations [which] would devote considerable effort to put modern developments in context—to examine how the U.S. antitrust system developed as it did, and to assess what that history means for the future of U.S. and global competition policy.
