The United States is committed to a free market economy in which the competitive process of the market ensures the most efficient allocation of our scarce resources and the maximization of consumer welfare. Federal antitrust laws represent the legal embodiment of this policy. The Department of Justice is responsible for enforcing the federal antitrust laws, which essentially prohibit private restraints of trade that unreasonably impede the free forces of the market. The DOJ Antitrust Division enforces federal antitrust laws through criminal and civil prosecutions, primarily under the Sherman and Clayton Acts. Individuals and businesses who are victims of antitrust activity also have the statutory right to pursue a civil action for damages.
Private restraints of trade include price fixing, bid rigging, and other collusive arrangements among competitors that might have the effect of allocating customers, restricting output, or raising price. Such conduct would constitute a criminal violation of Section 1 of the Sherman Act. The Sherman Act prohibits (a) contracts, combinations, or conspiracies in restraint of interstate commerce or foreign trade, and (b) monopolization, attempts to monopolize, or combinations or conspiracies to monopolize interstate commerce or foreign trade. While every violation of this Act is technically a criminal felony, the Department of Justice typically only criminally prosecutes for so called “naked” or “per se” unlawful restraints of trade among competitors, e.g., price fixing, bid rigging, and customer and territorial allocation agreements. Other Sherman Act violations are pursued civilly.
The Clayton Act prohibits corporate and other mergers and the acquisition of stock or assets of competing companies, where the effect of such action may be substantially to lessen competition or tend to create a monopoly. Anticompetitive tying, exclusive dealing contracts, and certain interlocking directorates are also prohibited. Violations of the Clayton Act are prosecuted civilly.