US DOJ Philosophy Shift on Single Firm Conduct

The new Assistant Attorney General in charge of the DOJ’s Antitrust Division, Christine A Varney, has announced withdrawal of the Department’s 2008 Report ‘Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act‘, stating it no longer represents DOJ(AD) Policy.  The Report, Varney claimed, ‘raised too many hurdles to government antitrust enforcement and favored extreme caution and the development of safe harbors for certain conduct within the reach of Section 2’.

This announcement signals a ‘shift in philosophy’ at the DOJ and clearly announces the AG’s intent to aggressively pursue ‘cases where monopolists try to use their dominance in the marketplace to stifle competition and harm consumers’.

In particular, Varney noted that the theory that underpinned the approach of the former administration, that monopoly markets ‘are generally self-correcting’ had been upset by recent developments in the market which ‘make it clear that we can no longer rely upon the marketplace alone to ensure that competition and consumers will be protected’.