4 Antitrust Enforcement Achieving victory in the 1st jury trial of a 2-sided market case To execute this far-reaching agenda, enforcers have used every tool at their disposal in ways unseen for years—invoking the Sherman Act for criminal monopolization claims, broadening the application of the Federal Trade Commission Act to a range of “unfair practices,” reinvigorating the Clayton Act’s prohibition on interlocking directorates, and reviving the Robinson-Patman Act for rebates and fees paid to pharmacy benefit managers. And while their efforts against brandname Fortune 100 companies have received the most attention, enforcers have been equally active in investigating or prosecuting claims against smaller companies, such as construction contractors and healthcare staffing firms. Further, at the behest of the current administration, enforcers have announced a particular interest in agriculture, airlines, information technology, prescription drugs and healthcare, and telecommunications. In short, companies across the economy— especially those launching strategic initiatives or shifting business practices or policies—must consider both traditional antitrust rules and the principles emerging from the recent flood of enforcement efforts. Knowing how to construe agency guidelines, policy directives, and public statements will help companies assess potential antitrust risk, leverage case law to defend existing business models, and endorse long-term, procompetitive business initiatives that will not call for costly course corrections. Companies must consider both traditional antitrust rules and the principles emerging from the recent flood of enforcement efforts. Highlights include: 6 antitrust trials over an 11-month period Securing acquittal in the 1st Justice Department criminal Antitrust prosecution to ever go to a 3rd trial
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