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Criminal Enforcement of Section 2 of the Sherman Act: An Empirical Assessment

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The Biden Justice Department has announced that it may begin to bring criminal monopolization cases under Section 2 of the Sherman Act, a practice that the Department has not employed in almost half a century. The Department’s leadership has justified this idea by asserting that it used to be common practice for the Antitrust Division to bring such cases. This Article presents the findings of an empirical study of all of the Justice Department’s antitrust case filings. It finds that the Justice Depart brought 175 criminal monopolization cases between 1903 and 1977, but that only 20 of these involved unilateral exclusionary conduct (as opposed to concerted cartel behavior), that only 12 of these resulted in a finding of criminal liability, that only one case involving non-violent conduct resulted in a prison sentence, and that the total fines meted in these cased amounted to less than $9 million in 2022 dollars. Thus, although there is historical precedent for bringing criminal monopolization cases, if the Justice Department carries through on its recent threats to begin bringing criminal monopolization cases again and it does so for non-violent unilateral conduct offenses and seeks significant penalties, it will be breaking new ground.