Did I Hear That Correctly? DOJ Antitrust Division Seeks to Criminally Prosecute Monopolization

This week, a DOJ Antitrust Division official signaled a significant expansion of its criminal enforcement program. While speaking at the ABA White Collar Conference in San Francisco, Deputy Assistant Attorney General Richard Powers said that the Division is considering criminally prosecuting violations of Section 2 of the Sherman Act, which prohibits monopolization. This is a major break from long-standing Division policy that it would prosecute only per se violations of the antitrust laws, and raises potentially significant due process concerns.

Although the Division has not brought criminal charges for a Section 2 violation in over 40 years, Powers explained that the Division historically did not shy from bringing criminal monopolization cases and will use “all available tools” to enhance antitrust enforcement. Powers gave no guidance about the circumstances in which the Division would consider such charges, other than to say that if the facts and law led the Division to believe criminal charges were warranted, they would bring a case.

Without further guidance from the Division, companies will have to fall back on foundational antitrust principles and ensure employees are adequately trained and business practices comply with current laws. Although the Division may be on the hunt for criminal cases, the legal strictures of the Sherman Act remain unchanged. Criminal enforcement of claims of monopolization or attempted monopolization, which are by definition subject to a Rule of Reason balancing test (not a per se prohibition), would have to overcome years of precedent limiting criminal violations to naked restraints of trade, and raises potentially significant concerns regarding due process, notice, and lenity.

Powers’ statements are consistent with other recent moves by the Division to expand criminal enforcement of the antitrust laws. In particular, the Division’s move to criminally prosecute “no-poach” agreements is another example of conduct that was historically subject to civil enforcement that the Division has sought to criminalize over the last several years. Beginning in 2016, the Division announced it considered naked no-poach agreements a per se violation of the antitrust laws subject to criminal enforcement. In 2020, the Division brought its first criminal charges for no-poach agreements, and it remains a significant enforcement priority.