Relevant Statutes and Agency Guidance
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CHAPTER III
RELEVANT STATUTES AND AGENCY GUIDANCE
A. Relevant Generally Applicable Statutes
A number of U.S. federal antitrust laws govern potential conduct
implicated by joint ventures. The U.S. Department of Justice (DOJ) and
the U.S. Federal Trade Commission (FTC) share enforcement
responsibilities of these laws; however, only the DOJ may prosecute
conduct criminally, and the FTC has sole jurisdiction to enforce the
Federal Trade Commission Act. 1
1. Sherman Act—Section 1
Section 1 of the Sherman Act declares that “[e]very contract,
combination . . . , or conspiracy, in restraint of trade” is illegal.2 But, as
explained below, section 1 prohibits only “unreasonable” restraints of
trade.3
2. Sherman Act—Section 2
Section 2 of the Sherman Act provides that “[e]very person who
shall monopolize, or attempt to monopolize, or combine or conspire with
any other person or persons, to monopolize any part of the trade or
commerce among the several States, or with foreign nations, shall be
deemed guilty of a felony.”4 The DOJ does not actively enforce the
criminal aspect of section 2, however.
Section 2 violations can exist in three forms: actual monopolization,
attempted monopolization, and conspiracy to monopolize. A violation for
actual monopolization exists when a firm (1) possesses monopoly power
1. See FED. TRADE COMM’N, GUIDE TO ANTITRUST LAWS, available at
https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-
laws/
antitrust-laws.
2. 15 U.S.C. § 1.
3. See Chapters IV, V, and VII for a fuller discussion of the application of
§ 1 to joint ventures.
4. 15 U.S.C.§ 2.
Joint Ventures
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in a relevant market and (2) has willfully acquired or maintained that
power as distinguished from growth or development as a consequence of
a superior product, business acumen, or historical accident.5 Conduct
violates section 2’s prohibition of attempts to monopolize when a single
firm has (1) engaged in predatory or anticompetitive conduct with (2) a
specific intent to monopolize, and (3) has a dangerous probability of
achieving monopoly power.6 Finally, the elements of conspiracy to
monopolize are: (1) the existence of a combination or conspiracy, (2) an
overt act in furtherance of the conspiracy, and (3) a specific intent to
monopolize.7 Cases in which joint ventures have been found liable under
section 2 include Citizen Publishing Co. v. United States8 and United
States v. Pan American World Airways, Inc.9
3. Clayton Act—Section 7
Section 7 of the Clayton Act prohibits stock or asset acquisitions
when “the effect of such acquisition may be substantially to lessen
competition, or to tend to create a monopoly.”10 The DOJ’s and FTC’s
general approach for analyzing whether a transaction violates section 7 is
set forth in their jointly issued Horizontal Merger Guidelines (Merger
5. Comcast Corp. v. Behrend, 569 U.S. 27, 43 (2013).
Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1231
(10th Cir. 2017). Courts have typically found that the third element of
attempted-monopolization is satisfied when the venture’s share is greater
than 50 percent; courts rarely find it satisfied if the venture’s share is
between 30 percent and 50 percent, and they will almost never find it
satisfied if the venture’s share is below 30 percent. 1 ABA SECTION OF
ANTITRUST LAW, ANTITRUST LAW DEVELOPMENTS 337-39 nn.793-95
(8th ed. 2017) [hereinafter ALD].
7. Volvo N. Am. Corp. v. Men’s Int’l Prof’l Tennis Council, 857 F.2d 55,
73-74 (2d Cir. 1988); see also Lenox MacLaren Surgical Corp. v.
Medtronic, Inc., 847 F.3d 1221, 1231 (10th Cir. 2017); Ass’n for
Intercollegiate Athletics for Women v. NCAA, 735 F.2d 577, 586 n.13
(D.C. Cir. 1984). Cf. Am. Tobacco Co. v. United States, 328 U.S. 781,
809 (1946).
8. 394 U.S. 131, 135 (1969).
296 (1963).
10. 15 U.S.C. § 18.
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