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DOJ Signals Readiness to Criminally Prosecute Monopolization Violations

Antitrust and Competition Law Alert® | March 14, 2022

Last week, Richard Powers, the Deputy Assistant Attorney General (DAAG) for criminal enforcement at the Department of Justice’s Antitrust Division told an American Bar Association conference in San Francisco that DOJ may seek to criminally prosecute violations of Section 2 of the Sherman Act, which addresses conduct by parties deemed to have monopoly power. While DOJ has long prosecuted price fixing and other “hardcore” antitrust conspiracies among competitors as criminal violations under Section 1 of the Sherman Act, attempting to pursue criminal charges for monopolization offenses would reflect an about-face from the past 40 years of enforcement practice. According to reports, Powers stated that “Section 2 is a felony just like Section 1,” and “if the facts and the law lead us to the conclusion that a criminal charge based on a Section 2 violation is warranted, then that’s what we’ll do, we’ll charge it.” Firms with leading market positions should be taking note of this pronouncement and confer with counsel before implementing policies that could potentially be viewed by the government as exclusionary, predatory, or otherwise anticompetitive.

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