Having discussed the Federal Trade Commission and how it came to be, we’re now going to focus on the other major agency that does antitrust enforcement: the Department of Justice (DOJ).
7.1 The Department of Justice PursuesBoth Criminal and Civil Enforcement Under The Sherman Act
Under the Sherman Act, the DOJ can prosecute individuals and businesses that violate antitrust law, civilly or criminally. That can mean seeking criminal sanctions and convictions or like the FTC choosing to pursue civil penalties stemming from violations.
The DOJ has the unique ability to seek criminal penalties for violations of antitrust law. Such prosecutions stem from per se violations of antitrust laws including price fixing, bid rigging, and market allocation. As we discussed in Chapter 3, per se violations are ones that are legally understood to always harm consumers and cannot be justified by legitimate business interests as they lack any redeeming qualities. For criminal antitrust enforcement, the DOJ can impose penalties of twice the amount gained by the anticompetitive business or twice the money consumers lost because of said business—up to $100 million for corporations and $1 million and/or up to 10 years in prison for individuals.
The DOJ can seek civil penalties in cases outside of per se violations through Sections 1 and 2 of the Sherman Act (covered in Chapter 3 and 4). Like the FTC, these civil actions typically result in fines as well as other potential remedies but are not criminal prosecutions.
7.2 The Department of Justice and Federal Trade Commission Can Choose Which Agency Enforces the Clayton Act
As we learned in Chapter 5, both the Federal Trade Commission and the DOJ both enforce the Clayton Act.
In practice, both agencies have chosen to devote their resources to different sectors of our economy. The Federal Trade Commission can even refer criminal antitrust enforcement to the DOJ. However, in recent years both have worked on antitrust enforcement against America’s tech industry.
Before investigations and enforcement, both the Federal Trade Commission and DOJ consult with another to avoid duplicating efforts. For example, we see this in how the FTC has in recent years overseen investigations and concerns related to Meta while the DOJ has done similarly against Google. As discussed below, however, there are some exceptions where the DOJ has exclusive authority.
7.3 The Department of Justice Has Sole Jurisdiction Over Certain Industries
Unlike the Federal Trade Commission, the DOJ can solely enforce specific industries exempt from the Federal Trade Commission Act. This includes the airline, banking, and telecommunications sectors.
It’s also important to note that under the Airline Deregulation Act (1988), Congress gave the DOJ authority to review airline mergers and acquisitions—something the Department of Transportation originally did and now can still grant antitrust immunity for in agreements between American and foreign airlines.