Tuesday, November 1, 2022
This chapter speaks to the use of civil sanctions in public enforcement of laws governing marketplace competition, with a focus on civil sanctions under the Sherman Act, FTC Act, and parallel state law in the United States.
The chapter argues that the use of civil sanctions in private enforcement is inextricable from the supporting remedial structure, including criminal enforcement and meaningful private enforcement. Thus, the limited use of civil sanctions in the US depends largely on the backstop of both criminal and private enforcement. In the absence of meaningful criminal and private enforcement it is necessary instead to give greater weight to civil sanctions. This explains both the greater reliance on civil sanctions in Europe and elsewhere on the globe and the increased call for civil fining authority for one or both federal enforcement agencies in the United States.
The chapter explains the theory of civil fines in law enforcement and reasons for a jurisdiction’s choosing one or the other form of sanctions. The chapter then explains the structure of remedies for antitrust violations in the US system, highlighting the three forms of public enforcement and the backstop of private enforcement. The chapter turns to recent developments in civil remedies, including punitive fines as well as damages and related civil monetary relief. The chapter concludes by noting the complementary nature of antitrust remedies and the need for increased attention to civil monetary relief when other remedies are given less prominence.