DOJ Brings Criminal Monopolization Case for Invitation to Collude: Can an Anticompetitive Proposal, Even If Rejected, Result in Criminal Liability?

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Earlier this year, the Department of Justice’s Antitrust Division stated that it would seek to criminally prosecute monopolization cases, a significant change from the DOJ’s recent practice of pursuing such cases solely as civil matters. In early November, the DOJ made good on that promise, announcing its first criminal monopolization case in over 40 years. The case is significant in that it shows that the DOJ will prosecute companies and individuals that merely take anticompetitive steps to attempt to obtain monopoly power, such as inviting competitors to collude, even if those actions are ultimately unsuccessful. Firms with significant market positions or few competitors in particular product or geographic segments should take note and confer with counsel before implementing policies that could potentially be viewed by the government as exclusionary, predatory or otherwise anticompetitive.