AAI Competition Roundtable: “Challenging Monopolies in Court – Where Have We Been and Where Are We Going?”

On Thursday, March 14, 2019, the American Antitrust Institute hosted a Competition Roundtable focused on monopolization law and enforcement: Challenging Monopolies in Court: Where Have We Been and Where Are We Going?

The need for a strong anti-monopoly law, embodied in Section 2 of the Sherman Act, has never been more important than it is today. Concentration has increased in key markets and powerful firms have emerged in network, technology, and other industries. But the courts have impaired the usefulness of Section 2 by adopting demanding requirements of plaintiffs, premised on a misplaced fear of discouraging procompetitive conduct. At the same time, the government has been bringing fewer monopolization cases, although the FTC has important cases pending in the semiconductor and pharmaceutical industries. This AAI competition roundtable will bring together experts from academia, government, and private practice to explore the implications of this new antitrust paradox.

Panel 1: The Current State of Monopolization Law and Enforcement

The first panel considered the evolution and current state of Section 2 enforcement, including prevailing monopolization standards.  Panelists discussed the enforcement record of the Antitrust Division, FTC, state attorneys general, and private enforcers; contrast the law and enforcement records of the U.S. and EU; and address pending U.S. cases such as Viamedia v. Comcast and FTC v. Qualcomm.

Panel 2: Reforming Section 2 Law and Enforcement

The second panel considered whether and to what extent U.S. monopolization law should be reformed. Panelists addressed prospects for stepped up enforcement, structural remedies, modifications to Section 2 doctrine, and use of Section 5 (and competition rulemaking), as well as more fundamental reforms such as recognizing no-fault monopolization and excessive pricing offenses.

AAI’s competition roundtables provided a unique forum for the development and exchange of ideas between expert panelists and audience members.