Overlap of FTC and DOJ antitrust authority
Overview: FTC and DOJ Antitrust Authority
Both agencies enforce major antitrust statutes:
Sherman Act (1890)
Clayton Act (1914)
Federal Trade Commission Act (1914)
Division of Responsibilities:
The DOJ Antitrust Division generally prosecutes criminal violations of antitrust laws and litigates civil enforcement actions in federal courts.
The FTC primarily handles civil enforcement, administrative proceedings, and rulemaking related to antitrust and unfair competition.
Jurisdictional Overlap:
Both agencies can investigate mergers and anticompetitive conduct.
FTC can bring administrative enforcement actions; DOJ prosecutes criminal cases and civil merger challenges in court.
The agencies have a formal Memorandum of Understanding (MOU) dividing merger review responsibilities, but overlap remains.
Enforcement Coordination:
Agencies coordinate investigations to avoid duplicative efforts but have sometimes pursued separate actions.
Both agencies interpret and enforce antitrust laws with some differing approaches.
Key Legal Principles Governing Overlap
Exclusive Authority for Criminal Prosecutions: DOJ has exclusive authority to prosecute criminal antitrust violations.
Administrative vs. Judicial Proceedings: FTC uses administrative adjudication and civil injunctions; DOJ uses federal court litigation.
Overlap in Civil Enforcement: Both can bring civil suits challenging monopolistic practices or mergers.
Judicial Deference: Courts respect the agencies’ respective expertise but require clarity on agency authority.
Key Case Law Illustrating FTC and DOJ Antitrust Overlap
1. FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972)
Context: FTC brought enforcement action for unfair methods of competition under Section 5 of the FTC Act, challenging DOJ’s exclusive criminal authority.
Significance:
Supreme Court held FTC cannot bring criminal charges (exclusive to DOJ).
Affirmed FTC’s broad authority to regulate unfair methods of competition, even if conduct also violates Sherman Act.
Clarified FTC and DOJ roles are complementary: DOJ prosecutes criminal violations; FTC polices unfair practices administratively.
Established foundational principle for agency overlap boundaries.
2. United States v. Philadelphia National Bank, 374 U.S. 321 (1963)
Context: DOJ challenged a merger under Section 7 of the Clayton Act. FTC filed a parallel administrative complaint.
Significance:
Court recognized DOJ’s authority to seek injunctive relief in federal courts against anticompetitive mergers.
While not directly resolving FTC overlap, the case illustrates DOJ’s primary role in merger litigation.
Helped define DOJ’s civil enforcement jurisdiction.
3. FTC v. Procter & Gamble Co., 386 U.S. 568 (1967)
Context: FTC challenged a merger administratively after DOJ had declined to act.
Significance:
Court held FTC’s administrative authority is valid and can be exercised independently.
Affirmed FTC can pursue civil remedies where DOJ has not.
Confirmed that FTC and DOJ can both act in antitrust enforcement, even in overlapping areas.
4. United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001)
Context: DOJ brought high-profile antitrust litigation against Microsoft; FTC also investigated Microsoft for related conduct.
Significance:
The case highlighted the different investigative and enforcement approaches of DOJ (criminal and civil litigation) and FTC (administrative and civil).
Demonstrated parallel investigations by FTC and DOJ are possible and can complement each other.
Showed coordination challenges but also effective enforcement across agencies.
5. FTC v. Actavis, Inc., 570 U.S. 136 (2013)
Context: FTC challenged “pay-for-delay” patent settlements under antitrust laws. DOJ declined to prosecute criminally.
Significance:
Supreme Court upheld FTC’s authority to enforce antitrust laws via civil actions even where DOJ did not pursue criminal charges.
Reinforced FTC’s distinct and independent enforcement role.
Clarified that FTC’s authority under Section 5 of FTC Act covers unfair competition beyond Sherman Act violations.
6. FTC v. Qualcomm Inc., 969 F.3d 974 (9th Cir. 2020)
Context: FTC brought civil suit alleging Qualcomm engaged in monopolistic practices; DOJ did not intervene.
Significance:
Court acknowledged FTC’s authority to challenge monopolistic conduct civilly.
The case reflects ongoing FTC enforcement in areas DOJ may not prioritize.
Shows practical overlap and complementary enforcement.
Summary of Overlap and Interaction
| Aspect | DOJ | FTC |
|---|---|---|
| Criminal Enforcement | Exclusive authority | No criminal jurisdiction |
| Civil Enforcement | Federal court litigation | Administrative and court actions |
| Merger Review | Primary agency, especially large mergers | Shares jurisdiction, administrative hearings |
| Rulemaking | No authority | Can promulgate antitrust rules |
| Approach | Litigation-focused | Administrative adjudication + litigation |
| Cooperation | Formal MOUs to divide cases | Coordination with DOJ |
Courts recognize both agencies have important but distinct roles.
Overlap is managed through cooperation but can cause parallel enforcement.
Judicial precedent affirms the validity and complementary nature of both agencies' actions.
Agencies bring different tools and standards to enforcement, benefiting antitrust policy.
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