DOJ Report on Section 2 of The Sherman Act: Skirmish or Schism?

October 2008
Global Competition Policy
Douglas M. Jasinski

DOWNLOAD PDF: DOJ Report on Section 2 of The Sherman Act: Skirmish or Schism?

The US Department of Justice, Antitrust Division (DOJ) issued a new report in September 2008, summarizing its views and guidance on unilateral conduct based in part on two years of joint public hearings it held with the US Federal Trade Commission (FTC). However, the FTC not only refused to endorse the report, it sharply criticized it. Is this dispute just another skirmish in a continuing healthy debate, or a sign of a more serious conflict between the two agencies over US antitrust enforcement policies? Whatever the answer, it is clear the DOJ and the FTC have very distinct views on enforcement policies regarding monopolization and single firm conduct under Section 2 of the Sherman Act. Here are the highlights of the DOJ’s report and thoughts on whether it will have any lasting implications, given the FTC’s public disagreement with it.