Antitrust Enforcement

The Sherman Act is brought to bear—with both criminal and civil penalties—in cases involving monopolization, price-fixing agreements, and other unreasonable restraints on trade. The Clayton Act is used to address specific problems created by mergers and certain forms of price discrimination, exclusive dealing agreements, and tie-in sales conditioned on the purchase of related products.

The Justice Department and the FTC have overlapping enforcement responsibilities. The Justice Department may bring actions under the Sherman Act, and the FTC may initiate actions under the Federal Trade Commission Act. Both may initiate proceedings under the Clayton Act. In addition, major regulatory agencies, such as the Federal Communications Commission, the Federal Energy Regulatory Commission, and the Surface Transportation Board, all review mergers under their own statutory authority.

Generally speaking, the Justice Department concerns itself with significant or flagrant offenses under the Sherman Act, as well as with mergers for monopoly covered by Section 7 of the Clayton Act. In most instances, the Justice Department brings charges under the Clayton Act only when broader Sherman Act violations are also involved. In addition to policing law violations, the Sherman Act assigns the Justice Department the duty of restraining possible future violations. Firms found to be in violation of the law often receive detailed federal court injunctions that regulate future business activity. Injunctive relief in the form of dissolution or divestiture decrees is a much more typical outcome of Justice Department suits than are criminal penalties.

Although the Justice Department can institute civil and criminal proceedings, civil proceedings are typically the responsibility of the FTC. The FTC is an administrative agency of the executive branch that has quasi-judicial powers with which it enforces compliance with the Clayton Act. Because the substantive provisions of the Clayton Act do not create criminal offenses, the FTC has no criminal jurisdiction. The FTC holds hearings about suspected violations of the law and issues cease and desist orders if violations are found. Cease and desist orders under the Clayton Act are subject to review by appellate courts.

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