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

• Published date: 25 May 2022
• Subject Matter: nti-trust/Competition Law, Antitrust, EU Competition
• 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 intends for the DOJ to follow in the FTC's recent, and busy, path.

One way the DOJ might distinguish itself from the FTC is through the criminal prosecution of monopolization offenses. On March 2, 2022, Deputy Assistant Attorney General for Criminal Enforcement Richard Powers remarked during a panel discussion on white-collar crime that "market concentration and consolidation is not only a civil antitrust issue," and answered in the affirmative when asked whether the DOJ was prepared to bring criminal charges in monopolization cases. Then, in April, the DOJ quietly updated its Justice Manual adding, among other revisions, the following italicized language to its Sherman Act statute section: "While a violation of this Act may be prosecuted as a felony, in general, the Department reserves criminal prosecution under Section 1 for "per se" unlawful restraints of trade among competitors, e.g., price-fixing, bid-rigging, and market allocation agreements. It may also bring, and has brought, criminal charges under Section 2."⁴

Kanter also indicated that the DOJ intends to focus on monopoly maintenance cases. Per Kanter: "Monopoly maintenance, in the form of moat-building strategies, helps to prevent the erosion of monopoly positions and thereby...