DOJ Rejects Calls for Guidance on Potential Criminal Prosecutions of Monopolists

On March 2, 2022, Deputy Assistant Attorney General Richard Powers sent shockwaves through the antitrust world when he revealed that the Department of Justice’s (DOJ) Antitrust Division (Division) was considering bringing criminal charges for violations of Section 2 of the Sherman Act. While Section 2—which prohibits single-firm conduct that creates or maintains monopoly power—has always provided that violators may be subject to criminal penalties, the Division has not criminally prosecuted a Section 2 case in more than 50 years. In fact, even civil Section 2 monopolization cases are rare. 

The shockwaves continued this week when DAAG Powers announced, during a panel discussion on June 7, that the Division is not planning to provide guidance regarding what criminal enforcement of Section 2 may look like. According to DAAG Powers, guidance is unnecessary because “there’s ample case law out there to help inform those who have concerns or questions.” As such, practitioners and companies seeking to understand potential criminal liability under Section 2 can only look to case law from over half a century ago.

The Division’s refusal to provide guidance on this development is particularly concerning given that DAAG Powers reiterated during the same discussion that the Division’s consideration of potential criminal Section 2 cases is “not an academic exercise.” In fact, he suggested that new Section 2 prosecutions may be just around the corner: “I’m not gonna speak to any ongoing matters, but I can assure you that we are seeing concerning conduct in many different sectors.”

To provide no guidance on such a significant shift in Division policy and practice is unusual. The Division has previously provided public guidance on topics like merger review and anticompetitive hiring practices. For instance, the Division released public guidance in 2016 following an announcement that it would begin considering criminal charges for no-poach and wage-fixing conspiracies. Section 2 cases would particularly benefit from additional guidance because litigating such claims is highly complex. Moreover, prior to filing suit against Google in 2020, the Division had not brought a significant Section 2 civil monopolization case since the early 2000s.

As the Biden administration continues to push an aggressive antitrust enforcement agenda, companies in all industries should review their antitrust compliance programs and consult with antitrust counsel before making decisions that may have an effect on competition. The experienced team at Hunton Andrews Kurth LLP stands ready to help companies navigate these decisions and the ever-changing antitrust enforcement landscape.