Shifting and Shrinking Common Ground: Recalibrating the Federal Trade Commission's and Department of Justice's Enforcement Powers of Single-Firm Monopoly Conduct

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Delaware Journal of Corporate Law (DJCL), Vol. 34, No. 2, 2009

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Chris Bernard
Delaware; Journal; Corporate; Law; Federal Trade Commission; FTC; Sherman; antitrust; law; laws; consumer
paper description
In an effort to clarify and steer the direction of section 2 of the Sherman Act (Sherman section 2) jurisprudence, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) held joint hearings to establish guidelines for determining when single-firm conduct creates anticompetitive outcomes. At the conclusion of the joint hearings, the DOJ released a report recommending a heightened standard to find single-firm conduct anticompetitive. The standard tacitly endorsed and aimed to extend the United States Supreme Court's recent interpretations of Sherman section 2. But the FTC did not endorse the findings. The FTC alleged that the DOJ's new heightened standard incorrectly relied on an overstated consensus among academics and practitioners in the antitrust community and improperly favored the interests of business over those of consumers. This note argues that this divergence should be expected as the two agencies derive their antitrust enforcement powers from different legislative sources and aim to achieve different ends. The FTC's inherent focus on consumer interests necessitates a lower standard that would find more conduct in violation of antitrust laws. But because section 5 of the Federal Trade Commission Act (FTCA section 5) derives ancillary powers from Sherman section 2, the DOJ's recommendation of a heightened standard affects the FTC's scope of enforcement. Specifically, an increased DOJ standard will correspondingly increase the FTC's standard. In order to mitigate further shifts in favor of business interests, the FTC must continue to vigilantly enforce the edges of FTCA section 5 so that any heightened Sherman section 2 standard does not swallow FTCA section 5's mandate and leave consumers to fend for themselves.