Criteria For Criminal Charges Under Section 2 of Sherman Act

The DOJ’s spring 2022 announcement that it will revive the practice of bringing criminal charges for violations of Section 2 of the Sherman Act has brought more questions than answers. No guidance has been issued, and statements by top DOJ enforcers have been conflicting. The last time criminal charges were brought under Section 2, which outlaws attempts and conspiracies to monopolize, was in 1977. Deputy Assistant AG Richard A. Powers has stated that the DOJ will be relying on this old case law in bringing prosecutions, rather than the more recent Section 2 law developed in the civil context. But Assistant AG Jonathan Kanter, the DOJ’s top antitrust official, has complained about the “dearth of section 2 case law addressing modern markets.” It seems clear that the DOJ is intent on reviving criminal Section 2 enforcement, but it has yet to explain what conduct it believes warrants prosecution.