State AGs can either bring cases on behalf of their states, as direct purchasers of goods and services, or on behalf of their citizens. State Attorneys General have the authority to enforce federal antitrust laws, including by bringing claims under Section 2 to stop powerful corporations from monopolizing local markets. While the FTC has more often exercised its authority to address monopolization and unilateral conduct in recent years, its track record is quite modest.
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The FTC may order companies to stop antitrust violations and enforce these orders by seeking injunctions in federal court.
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All Sherman Act violations also violate the Federal Trade Commission Act, meaning that, functionally speaking, the FTC also enforces the civil provisions of the Sherman Act. It operates under a different statute, known as the Federal Trade Commission Act, which allows the agency to bring bring administrative proceedings challenging unfair or deceptive acts or practices. DOJ has not brought a major Section 2 civil or criminal case in twenty years.The Federal Trade Commission (FTC) also enforces federal antitrust laws. It can also seek criminal fines up to $100 million-though DOJ has declined to criminally prosecute Section 2 cases for decades. DOJ can seek injunctions to stop monopolistic conduct and treble damages for the harm the United States has suffered as a purchaser. Department of Justice’s Antitrust Division (DOJ) can bring Section 2 claims on behalf of the United States. Section 2 cases can be brought by three kinds of plaintiffs: How is a Section 2 case brought? What kind of damages or remedies do Section 2 cases seek? Using a dominant position in one market to gain an uncompetitive advantage in another.Refusing to share essential facilities with competitors.Expanding of manufacturing capacity beyond that which a company intends to use.Enforcing fraudulently-procured patents.Though courts and enforcers have limited Section 2’s application, the law has historically applied to a broad range of unilateral anticompetitive conduct, including: There is strong historical precedent for aggressive Section 2 enforcement.
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Google’s advertising and search practices, Amazon’s predation of third-party sellers, or Facebook’s use of application program interfaces to thwart competitors could all, for example, be investigated as potential Section 2 violations. Rather, the fact that a company possesses and abuses a high degree of market power warrants antitrust scrutiny under Section 2.
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This means that enforcers and private parties do not need to show that a company entered illegal agreements to fix prices or rig bids, as they do under Section 1, which is used mostly against cartels. Section 2 bars companies both from acts to maintain unfair monopoly power and from attempting or conspiring to exploit it. Section 2 focuses on single-firm conduct-the actions a company takes to attain or keep monopoly power. The law seeks to break concentrated power, guarding against the use of monopoly to unfairly block competition, fix prices, gain a competitive advantage, or destroy a competitor. Section 2 makes it illegal for a single company to “monopolize, attempt to monopolize, or combine or conspire” to monopolize. While it was once unthinkable to imagine that policymakers would move to break the power of Big Tech, it is now not a question of “if” but “when” and “how.” This memo answers questions pertaining to federal Section 2 enforcement and how it should be used to restructure Google and hold other tech giants accountable. It will send an important signal to corporate America that antitrust laws will be enforced and monopoly power will not be tolerated. The case reflects a growing, bipartisan consensus that the federal government’s 1970s-era, pro-corporate antitrust ideology has helped bestow tech giants like Google with extraordinary power. The suit would be the first major case the Department of Justice has filed under Section 2 of the Sherman Act in twenty years. The Department of Justice is likely to file antitrust claims against Google in the coming weeks.