By Dan Gustafson and Abou Amara
More than a century ago, the critical industries of the day in the United States—railroads, electricity, oil, and gas—rested in the hands of a few powerful corporations. Rather than competing with one another as expected under our innovative, capitalistic system, these powerful entities realized that they could extract above-market profits from American consumers with their market power or concerted action. As a result, collusion and consolidation became the mantra of the day as these companies sought to increase their unchecked economic power. This anticompetitive behavior resulted in “exorbitantly high prices on essential goods”1 for millions of American consumers, reduced output of products and services, lessened the quality of those products and services, and raised unfair barriers for those wanting to compete in the marketplace. Despite significant public outcry against these abuses, there was very little the American people could do about it.
But in 1890, Senator John Sherman of Ohio proposed, and Congress enacted, the Sherman Antitrust Act.2 The goal of the Sherman Act was to ensure that markets worked for consumers and companies fairly competing for business, rather than for dominant companies and monopolies. Specifically, the law prohibits trusts, monopolies, and cartels from dominating a market and likewise bans the use of contracts, the formation of business conspiracies, and other business practices that amount to a “restraint of trade.”3 Some common restraints of trade include “price-fixing,” dividing markets (commonly referred to as “market allocation”), and “bid-rigging.”
In 1914, Congress strengthened the Sherman Act by adopting the Clayton Act. That legislation added several important tools to the law for antitrust enforcers and specifically addressed anti-competitive mergers, monopolies, and price discrimination.4 Particularly important, the Clayton Act created a private right of action for violations of the Sherman Act and the Clayton Act that granted aggrieved parties a federal cause of action to protect themselves from harmful, anticompetitive practices across the country. By creating this private right of action, and providing for the imposition of treble damages and attorneys’ fees, the Clayton Act added a powerful private incentive to complement government enforcement actions.
Following 1914, enforcement of the Sherman Act, the Clayton Act, and their progeny has generally taken two forms: (1) public enforcement through the Antitrust Division of the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC), and (2) private party enforcement through (predominantly) class-action antitrust litigation. Like a bicycle, antitrust enforcement works best when both wheels of enforcement—public and private—are adequately and properly used. From about 1900 to 1940, both wheels were working fairly well. During that time, the DOJ routinely brought actions to preserve competition, and private parties brought money-damages actions against companies for their anticompetitive conduct.
For example, in Northern Securities Co. v. United States,5 the United States Supreme Court held that a railroad holding company’s ownership of several other subsidiary competitor railroad companies violated the Sherman Act, and ordered the breakup of the holding company, requiring that each respective railroad company operate separately and independently of each other. Similarly, in Standard Oil Co. of New Jersey v. United States,6 the Court, affirming the lower court, held that the oil company’s holding companies—which, in turn, owned nearly all petroleum companies and oil refining companies in the United States—violated the Sherman Act, and the Court broke up the company. As those cases illustrate, the DOJ and the federal courts had a strong appetite for ridding our economic system of anticompetitive behavior or anticompetitive market circumstances.
But following that initial era of robust public and private enforcement, the appetite for public enforcement waned. Since the 1970s, public enforcement of the antitrust laws has entered a period of relatively “rare”7 enforcement—owing in part to the rise of the laissez-faire Chicago school of economics in antitrust law. And what has been the result? Excessive market concentration and dominant firms, which has resurrected many of the same concerns that faced Americans prior to Congress’s enactment of the Sherman Act.
According to NYU economist Thomas Philippon, a world-renowned scholar on competition, 75 percent of U.S. industries have experienced significant market concentration since the 1970s,8 leading to a series of consumer, business, and labor problems. From a consumer standpoint, Americans have experienced a 7 percent increase in prices (relative to European Union residents) for the same goods, a difference estimated to cost the median American household $5,000 per year.9 From a business growth standpoint, new business formations have declined as a share of the economy since the 1970s.10 And from a labor standpoint, industry-specific consolidation is estimated to decrease wages by as much as 17 percent.11
Excessive market concentration hurts consumers in our economy. These statistics, and so many more, paint a clear picture: Consistent antitrust enforcement is essential to maintain a vibrant American economy for competing businesses and consumers. And after decades of relative inertia, it appears that the tide may be turning. Two years ago, the Biden Administration issued an executive order, “Promoting Competition,” that included 72 antitrust and competition initiatives to be implemented by 14 federal agencies.12 This enforcement activity looks hardest at the core industries of today—Big Tech.
DOJ’s head for antitrust, Assistant Attorney General Jonathan Kanter, recently spoke about the threat of tech monopolization to our free markets. In those remarks, he noted that the “digital economy has enabled monopoly power of a nature and degree not seen in a century”—in other words, since the days of Northern Securities and Standard Oil.13 “The digital age is not only characterized by the presence of monopoly power, but by new means of its exploitation more threatening to individual freedom than ever before.”14 These remarks, signaling a resurrection of robust public antitrust enforcement, were not simply hollow words; they were a clear mandate—one that has led to real action.
First, the DOJ has returned to prosecuting criminal antitrust violations. Although the Sherman Act has provided for criminal prosecution since its inception, criminal enforcement has generally been non-existent. From the 1970s until 2020 or so, the DOJ had not prosecuted a single criminal antitrust case.15 But by the end of 2021, the DOJ had “21 indicted cases against 42 individuals, including 9 CEOs and corporate presidents under indictment.”16 Moreover the DOJ ended 2021 with “146 pending grand jury investigations, which is the most in 30 years.”17
And second, the DOJ and FTC have returned to engaging in robust investigations and civil enforcement. Since 2018, the DOJ and FTC—under both Democratic and Republican administrations—have brought dozens of investigations and enforcement actions against some of the largest tech companies, including Apple, Amazon, Google, Meta, and Microsoft. In December 2022, for example, the FTC filed an administrative action against Microsoft’s proposed acquisition of video game developer Activision Blizzard, Inc., alleging that the acquisition would “result in harm to consumers, including reduced consumer choice, reduced product quality, higher prices, and less innovation.”18 In September 2023, an antitrust monopolization trial against Google began in Washington D.C. federal court.19 In that trial, the DOJ hopes to prove that Google illegally abused its power over online search functionality to throttle competition.
Although the results of this increased criminal and civil public enforcement have been mixed, the scope, pace, and appetite for robust public enforcement—regardless of which political party controls the Executive branch— is an indication that these recent trends are not an aberration; they are the beginning of a robust new era.
This resurrection is a welcome arrival for private class-action enforcers. For the first time in over three decades, private enforcers are confident that we can again get back on the bicycle and properly ride again, knowing that the public wheel is pumped up and ready to roll.
That’s why antitrust is back.
Dan Gustafson and Abou Amara are colleagues at Gustafson Gluek PLLC, a national complex litigation law firm that specializes in, among other things, antitrust class-action litigation.
Notes
1 Will Kenton, “Sherman Antitrust Act: Definition, History, and What It Does,” (6/29/2022)
2 15 U.S.C. §1, et seq.
3 Id.
4 15 U.S.C. §12 et seq.
5 Northern Securities Co. v. United States, 193 U.S. 197 (1904)
6 Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911).
7 Maurice E. Stucke and Ariel Ezrachi, “The Rise, Fall, and Rebirth of the U.S. Antitrust Movement,” Harvard Business Review (12/15/2017).
8 The White House, “FACT SHEET: Executive Order on Promoting Competition in the American Economy,” (7/9/2021).
9 Id.
10 Supra note 6.
11 Jose Azar, Ioana Marinescu, and Marshall Steinbaum, “Labor Market Concentration,” the Journal of Human Resources (May 2020).
12 Presidential executive order on antitrust enforcement, Exec. Order No. 14036, 86 Fed. Reg. 36987 (7/9/2021).
13 Assistant Attorney General Kanter Keynote at Fordham Competition Law Institute’s 49th Annual Conference on International Antitrust Policy, (9/16/2022), https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-antitrust-division-delivers-keynote-fordham, accessed 7/12/2023.
14 Id.
15 Carsten Reichel, “US DOJ Files First Criminal Charge Under Sherman Act Section 2 in Nearly 50 Years,” Norton Rose Fulbright (November 2022), https://www.nortonrosefulbright.com/en-us/knowledge/publications/14f4c7e7/us-doj-files-first-criminal-charge-under-sherman-act-section-2-in-nearly-50-years, accessed 9/1/2023.
16 Press Release, US Dep’t of Justice, Assistant Attorney General Jonathan Kanter Delivers Opening Remarks at 2022 Spring Enforcers Summit (4/4/2022).
17 Id.
18 In the Matter of Microsoft/Activision Blizzard, Inc., FTC No. 2210077, Dkt. No. 9412 (7/7/2023).
19 U.S., et al. v. Google, No. 1:20-cv-03010 (D.D.C. 2020).