7-2.000 - Antitrust Statutes

7-2.100 - Antitrust Statutes

General enforcement, by criminal and civil proceedings, of the federal antitrust laws and other laws relating to the protection of competition and the prohibition of restraints of trade and monopolization are assigned to the Antitrust Division.  28 C.F.R. § 0.40. 

This includes violations of the Sherman Act, which prohibits conspiracies in restraint of trade and monopolization, attempted monopolization, and conspiracies to monopolize; and the Clayton Act, which prohibits anticompetitive mergers, among other things.

The Antitrust Division also investigates and prosecutes criminal violations under Title 18 affecting the competitive process, or affecting investigations into anticompetitive conduct.  JM 7-1.200.  This includes criminal actions for conspiring to defraud the federal government by violation of the antitrust laws.  28 C.F.R. § 0.40. 

[updated April 2022]

7-2.200 - The Sherman Act

The Sherman Act prohibits (a) contracts, combinations, or conspiracies in restraint of interstate commerce or foreign trade (15 U.S.C. § 1), and (b) monopolization, attempts to monopolize, or combinations or conspiracies to monopolize interstate commerce or foreign trade (15 U.S.C. § 2), among other things.

While a violation of this Act may be prosecuted as a felony, in general, the Department reserves criminal prosecution under Section 1 for “per se” unlawful restraints of trade among competitors, e.g., price fixing, bid rigging, and market allocation agreements.  It may also bring, and has brought, criminal charges under Section 2.

Criminal violations of this Act carry a maximum prison sentence of 10 years. Criminal violations of this Act carry a maximum fine of the greatest of (a) twice the gross pecuniary gain derived from the crime, (b) twice the gross pecuniary loss caused to the victims by the crime, or (c) for defendant corporations: $100 million, and for individuals: $1,000,000.

[updated April 2022]

7-2.300 - The Clayton Act

The Clayton Act prohibits corporate and other mergers—and the acquisition of stock or assets—of competing companies, where the effect of such action may be substantially to lessen competition or tend to create a monopoly. Anticompetitive tying and exclusive dealing contracts are also prohibited, as are certain interlocking directorates. Violations of this Act are prosecuted civilly.

[updated February 2020]

7-2.400 - The Antitrust Procedures and Penalties Act (Tunney Act)

The Antitrust Procedures and Penalties Act (commonly known as the Tunney Act, 15 U.S.C. § 16(b)-(h)) subjects the Antitrust Division’s consent judgments to public scrutiny and comment. The Tunney Act requires that if the Division seeks a court-ordered consent judgment under the antitrust laws, it must file a Competitive Impact Statement that sets forth the information necessary for the court and public to evaluate the proposed consent judgment in light of the Division’s filed complaint and publish that statement and the proposed final judgment in the Federal Register to allow for at least a 60-day comment period.

After the end of the 60-day comment period, the Division must publish in the Federal Register any comments received and the Division’s reply before it can move the court to enter the proposed final judgment. When considering whether to enter the proposed final judgment, the court must generally approve the agreed-to judgment so long as it is in the public interest. Congress amended the Tunney Act in 2004 to clarify that that it does not compel the court to engage in extended review proceedings or permit any third party to intervene in the entry of the proposed judgment.

[added January 2025]

7-2.500 - Other Competition Laws

In addition to representing the United States in enforcing federal antitrust laws and other laws relating to the protection of competition, the Antitrust Division supports other federal agencies with enforcement of statutes aimed at promoting competition.

[renumbered January 2025]