DOJ's Revival Of Section 2 Litigation Is Part Of "New Era Of Vigorous And Effective" Antitrust Enforcement

• Published date: 25 May 2022
• Law Firm: Winston & Strawn LLP
• Author: Jeffrey J. Amato, Brandon W. Annette and Jay R. Wexler

On April 21, 2022, Assistant Attorney General Jonathan Kanter gave a spirited keynote address at the University of Chicago, declaring "that the era of lax enforcement is over, and the new era of vigorous and effective antitrust law enforcement has begun." Of particular interest, Kanter signaled that the U.S. Department of Justice (DOJ) intended to revive monopolization cases under Section 2 of the Sherman Act not by settling these cases, but by litigating them to a decision. These are potentially seminal words coming from the head of the DOJ's Antitrust Division.

In his address, Kanter claimed that "Section 2 was very near death" merely five years ago, with "no significant cases in nearly twenty years." History proves him correct, and the timeline is telling. In fact, Federal Trade Commission (FTC)-led Section 2 cases generated only a handful of written decisions¹ in the five years prior to April 21, 2017, Kanter's chosen demarcation line. In just over the last year, there have been just as many.² And while the FTC has recently become active, the DOJ has not brought a significant monopolization case since the early 2000s.³ Kanter promised to "vigorously enforce Section 2 of the Sherman Act," and it seems clear that he...