New DOJ and FTC Approaches to Prosecuting Antitrust Conduct

The Department of Justice (DOJ) is continuing its aggressive prosecution of criminal cases, while also now utilizing alternative methods to pursue alleged monopolistic conduct. Specifically, the DOJ is using its amicus brief program to advocate for favorable positions in civil litigation. In the past year alone, the DOJ has filed amicus briefs in civil suits involving claims under both Section 1 and Section 2 of the Sherman Act. In some of these cases, the DOJ was ultimately successful in getting circuit courts to adopt its interpretation of the relevant antitrust issues. The Federal Trade Commission (FTC) is also resorting to new tactics in its fight against alleged monopolistic practices. On Sept. 21, the FTC expanded the tools it can use to curtail perceived anticompetitive practices in labor markets. And the FTC and the Department of Labor also recently announced a previously signed memorandum of understanding regarding the coordination of the two agencies in connection with the investigation of unfair labor practices and potential enforcement actions.

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