Head of DOJ Criminal Antitrust Unit Says that Criminal Monopolization Cases May be on the Horizon

Powers’ statement represents a significant Antitrust Division policy shift

While the Division has not brought a criminal monopolization case in over forty years, it has the authority to do so pursuant to Section 2 of the Sherman Act, which makes it a felony offense for any person to "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 . . . ."¹ In January 2022, Assistant Attorney General Jonathan Kanter expressed concern over a “dearth of Section 2 case law addressing modern markets,”² and Powers’ remarks make clear that criminal prosecutions will be part of the Division’s Section 2 enforcement priorities. 

A possible next step as the Division seeks to implement this significant policy shift is the issuance of concrete guidance on how the agency intends to approach the criminal prosecution of monopolization cases. The Division provided similar guidance in an October 2016 joint publication with the Federal Trade Commission entitled “Antitrust Guidance for Human Resource Professionals.”³ This guidance was published alongside a DOJ press release⁴ announcing the expansion of criminal enforcement into labor markets. These guidelines articulated a shift in policy, warning that the Division would be using its authority to “proceed criminally against naked wage-fixing or no-poaching agreements.” It would be unusual for the Division to bring a criminal monopolization case for the first time in 40 years without first providing guidance. Without further guidance from the Division, there remains significant uncertainty, making it difficult for companies to take steps to avoid DOJ scrutiny and potential criminal exposure.

Next steps

Hogan Lovells attorneys will be monitoring the Division’s evolving position closely, and are well-positioned to provide expert guidance to help clients navigate a rapidly changing criminal antitrust enforcement landscape. 

References

1 15 U.S.C. § 2 (2000).

2 Department of Justice press release, Assistant Attorney General Jonathan Kanter of the Antitrust Division Delivers Remarks to the New York State Bar Association Antitrust Section (24 January 2022) available at https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-antitrust-division-delivers-remarks-new-york.

3 Department of Justice and Federal Trade Commission, Antitrust Guidance for Human Resource Professionals (October 2016) available at https://www.justice.gov/atr/file/903511/download.

4 Department of Justice press release, Justice Department and Federal Trade Commission Release Guidance for Human Resource Professionals on How Antitrust Law Applies to Employee Hiring and Compensation (20 October 2016) available at https://www.justice.gov/opa/pr/justice-department-and-federal-trade-commission-release-guidance-human-resource-professionals.

Authored by Kathryn Hellings and Daniel Shulak.