In the United States, monopolisation is governed primarily by section 2 of the Sherman Act. The Federal Trade Commission (FTC) might bring similar claims under section 5 of the FTC Act, which prohibits ‘unfair methods of competition’. In general, an offence requires proof that the defendant: (1) possesses monopoly power in a relevant product and geographic market; and (2) has engaged in exclusionary conduct to obtain or maintain that monopoly power (ie, conduct other than competition on the merits).
Both the FTC and the Department of Justice (DOJ) have jurisdiction to investigate and bring actions against unlawful monopolisation practices. While monopolisation cases are typically a minority of total competition enforcement cases, monopolisation has been an area of steady enforcement activity, with most cases in recent history brought by the FTC.
However, in the past five years this has changed dramatically.
LINKS
Read “United States: Authorities Reinvigorate Antimonopoly Enforcement but Disfavour Ex Ante Approach to Big Tech,” co-authored by Justin P. Hedge and Nicole Ring, published by Global Competition Review.