THE ANTITRUST LITIGATOR
Is Criminal Enforcement of Section 2, the Sherman Act Coming? By JEFFERY M. CROSS
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n March, I attended the American Bar Association Antitrust Law Section’s Spring Meeting in Washington. A hot topic under discussion was the possibility that the Department of Justice (DOJ)’s Antitrust Division might pursue criminal cases under Section 2 of the Sherman Act. When Section 2 was passed by Congress in 1890, it was written as a statute that could be enforced either civilly or criminally. However, it has
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been quite some time since the DOJ pursued a Section 2 violation as a stand-alone criminal case. Section 2 makes three different types of conduct unlawful: monopolization, attempt to monopolize, and conspiracy to monopolize. Monopolization presents the greatest challenges to criminal enforcement. There are two elements to a monopolization case. First, the defendant must have monopoly power in the relevant market during
DECEMBER 2023
the period of the indictment. Second, the defendant must have willfully acquired its monopoly power through anti-competitive conduct during this period. Several aspects of the monopolization case will make criminal enforcement difficult. Significantly, having a monopoly or monopoly power is not itself unlawful. The Supreme Court has indicated that the mere possession of monopoly power is not only not unlawful, it BACK TO CONTENTS
