Monday, October 27, 2008

The DOJ's Single-Firm Conduct Report: Promoting Consumer Welfare Through Clearer Standards for Section 2 of the Sherman Act

Posted by D. Daniel Sokol

Thomas O. Barnett and Hill B. Wellford of DOJ advocate for greater certainty in Sherman Section 2 in their support of the DOJ released Single Firm Conduct report.  Their article is The DOJ's Single-Firm Conduct Report: Promoting Consumer Welfare Through Clearer Standards for Section 2 of the Sherman Act.

ABSTRACT: On September 8, 2008, the Department of Justice (the "Department") issued a 213-page report entitled Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act (the "Single-Firm Conduct Report" or "Report").(1) The Report examines whether and when certain types of single-firm conduct may violate Section 2 of the Sherman Act by harming competition and consumer welfare. The Report serves three purposes. First, it summarizes and synthesizes views expressed at the joint Department and Federal Trade Commission ("FTC") hearings, recent legal and economic scholarship, and court decisions regarding single-firm conduct. Second, it provides transparency by explaining the Department's enforcement views in this important area of the law. And third, it makes progress toward the goal of developing sound, clear, objective, effective, and administrable standards for Section 2 analysis. Those standards best promote competition and consumer welfare–the goal of the antitrust laws–because they better identify and prohibit conduct that harms the competitive process and avoid interfering with the beneficial competition that drives innovation and economic growth.

The Single-Firm Conduct Report has been greeted with much discussion. The Department offers this article to add to the conversation by describing the background of the report, setting forth some of its key conclusions, and addressing some of the public commentary on the report. What this article does not attempt to do, however, is supplement or substitute for the report itself–the report stands on its own, and the reader is invited to review the report in its entirety or to review at least the report's six-page executive summary.

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