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Mark S. Popofsky, Oct 01, 2008
The U.S. Department of Justice (“DOJ”) released a long-awaited report on Section 2 of the Sherman Act (“Report”) on September 8, 2008. Strikingly, although the Federal Trade Commission (“FTC”) and the DOJ jointly held the 2006 hearings that led to the Report, the Report was issued under the DOJ’s name alone. Even more strikingly, three FTC Commissioners—a working Commission majority—immediately issued a statement roundly condemning the Report as improperly seeking to “erect a multi-layer, protective screen for firms with monopoly or near-monopoly power.” The FTC trio further expressed its readiness “to fill any Sherman Act void that might be created if the Department actually implements the policy decisions expressed in its Report.”
