Statutes Enforced

• Pages: 25-47

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CHAPTER II

STATUTES ENFORCED

The Antitrust Division of the Department of Justice is responsible for

the civil enforcement of multiple statutes. Substantively, they include the

Sherman Act, Clayton Act, and Wilson Tariff Act. Additionally, the

Antitrust Civil Process Act and International Antitrust Enforcement

Assistance Act empower the Division to obtain and share information to

conduct its own investigations and aid the efforts of foreign antitrust

enforcers. There are also a number of statutes relating to matters such as

antitrust immunity and regulated industries that affect the Division’s

enforcement.

A. Statutes Enforced by the Antitrust Division

1. Sherman Act

The Sherman Act has two principal substantive provisions, which

together constitute the basis for the vast majority of the Division’s non-

merger civil enforcement. Section 1 states that “[e]very contract,

combination in the form of trust or otherwise, or conspiracy, in restraint

of trade or commerce among the several States, or with foreign nations,

is declared to be illegal.”1 Section 2 states 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.”2 Because both sections are written in general terms, the

courts have had to articulate specific rules and standards addressing what

forms of conduct are anticompetitive and grounds for antitrust liability.

a. Section 1

For a plaintiff to establish liability under Section 1, two conditions

must be met. First, evidence of concerted action, i.e., agreement or

1. 15 U.S.C. §1.

2. Id. § 2.

26 DOJ Civil Antitrust Practice and Procedure Manual

conspiracy, must be presented.3 Second, the agreement must constitute

an unreasonable restraint of trade.4

Absent an express agreement, establishing that the defendants acted

in concert can be difficult. While a paper trail of evidence expressly

revealing joint conduct between multiple firms is sufficient,5 such

evidence rarely arises in practice. Instead, proof of concerted action must

typically be inferred from circumstantial evidence, such as the firms’

conduct and various communications between them. Parallel conduct

between two firms without more generally is not enough to satisfy the

first element.6 When the evidence is equally suggestive of joint conduct

and unilateral conduct, courts have held that the plaintiffs have failed to

satisfy their burden.7 For parallel conduct to carry more weight, some

plus factors must be shown.8 This can include documentary evidence

implying a desire to collude or limit competition in some other way.9

While courts have not issued an exhaustive list of plus factors, a plus

factor must “tend to exclude the possibility” that the two firms were

acting independently.10 Moreover, a firm cannot conspire with itself or a

wholly-owned subsidiary because such conduct is deemed to be

unilateral and thus immune from Section 1 scrutiny.11

In addition to establishing joint or concerted action, proof of an

unreasonable restraint or agreement must be shown. Myriad forms of

conduct can potentially be anticompetitive. Forms of conduct that

3. See United States v. Apple, Inc., 791 F.3d 290, 313-14 (2d Cir. 2015).

4. Id.

5. Id. at 315; United States v. Trenton Potteries Co., 273 U.S. 392, 394

(1927).

6. See In re Text Messaging Ant itrust Litig., 782 F. 3d 867, 873-79 (7th Cir.

2015).

7. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007).

8. See, e.g., Apple, 791 F.3d at 315; Stanislaus Food Prods. Co. v. USS-

POSCO Indus., 803 F.3d 1084, 1092 (9th Cir. 2015).

9. See Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984)

(“[S]omething more than evidence of complaints is needed. There must

be evidence that tends to exclude the possibility that the manufacturer and

nonterminated distributors were acting i ndependently. As J udge Aldisert

has written, the antitrust plaintiff should present direct or circumstantial

evidence that reasonably tends to prove that the manufacturer and others

‘had a conscious commitment to a common scheme designed to achieve

an unlawful objective.’”).

10. Id.

11. See American Needle, Inc. v. NFL, 560 U.S. 183, 193-94 (2010);

Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 762, 771 (1984).