News release: “The Department today issued a report informing consumers, businesses and policy makers about issues relating to monopolization offenses under the antitrust laws. The report, Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act, September 2008, U.S. Department of Justice (215 pages, PDF) examines whether and when specific types of single-firm conduct may or may not violate Section 2 of the Sherman Act by harming competition and consumer welfare.

The Department’s report draws extensively on a series of joint hearings, involving more than 100 participants, that the Department and the Federal Trade Commission (FTC) held from June 2006 to May 2007 to explore in depth the antitrust treatment of single-firm conduct. The 213-page report also incorporates commentary found in scholarly literature and the jurisprudence of the U.S. Supreme Court and lower courts.

Section 2 of the Sherman Act prohibits a firm from illegally acquiring or maintaining a monopoly, meaning the ability to exclude competitors and profitably raise price significantly above competitive levels for a sustained period of time. Unlike antitrust laws that prohibit anticompetitive mergers or other agreements among firms, Section 2 particularly targets single-firm conduct, such as decisions regarding whether and on what terms to sell to or buy from others. Although possessing monopoly power is not unlawful, using an improper means to seek or maintain monopoly power is unlawful where it can harm competition and consumers.”