HISTORICAL DEVELOPMENT THAT GAVE IMPETUS TO THE ANTITRUST LEGISLATION IN THE UNITED STATES AND THE IMPACT ON THE US ECONOMY

Introduction

There are two basic antitrust laws in the United States - the Sherman Act and the Clayton Act; both are enforceable either by the Antitrust Division of the Department of Justice, the Federal Trade Commission or private persons alleging economic injury caused by violation of either of them. In addition, the Federal Trade Commission (FTC) Act and the Robinson-Patman Act may also be utilized by the Commission and private persons (only the Commission, however -- i.e., neither the Antitrust Division nor private persons -- may enforce the FTC Act). Together, they spell out the conduct and activities prohibited in economic, market transactions.

There are also some statutes directed to specific industries or types of transactions which indicate the likely antitrust consequences for economic conduct in those areas. This Report briefly summarizes (1) the primary United States antitrust statutes, and (2) some of the activities which are generally considered to be violations of those laws. There is also some reference to the prohibition against unfair competition and the “unfairness” jurisdiction of the Federal Trade Commission (FTC). There is not, however, any discussion of the extraterritorial reach of the United States antitrust laws, a subject which is beyond the scope of this brief Report. Further, the laws whose descriptions follow do not constitute all of the statutes which may be applicable to, or implicated in antitrust issues, but rather, are those which are most often utilized. In reading the information presented, readers should bear in mind that the antitrust laws are concerned with the functioning of the marketplace - i.e. competition and not the protection of any individual competitor.

The Primary Laws

Sherman Act (15 U.S.C. § § 1-7)

SECTION 1 (15 U.S.C. § 1). Prohibits contracts or conspiracies in restrain of trade, which phrase has been, since at least 1911, judicially interpreted as meaning unreasonable restraints of trade.

SECTION 2 (15 U.S.C. § 2). Prohibits monopolization or attempted monopolization; it is sometimes used in conjunction with section 7 of the Clayton Act (15 U.S.C. §18), which prohibits mergers or acquisitions which may tend to lessen

Violation of either provision is a felony, and fines for violation are currently set at $350,000 for individuals and $10 million for corporations.

Clayton Act (15 U.S.C. § § 12-27)

SECTION 4 (15 U.S.C. § 15). Contains the damage provisions of the antitrust laws. 15 U.S.C. §15(a) permits “any person ... injured in his business or property by reason of anything forbidden in the antitrust laws [to] sue therefor [and to] recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.” After the Supreme Court interpreted the words “any person” to include foreign governments, the provision was amended in 1982 to restrict foreign states' recovery of monetary antitrust damages to “actual damages sustained” plus costs and reasonable attorneys' fees (15 U.S.C. §15(b)). The limitation to actual damages was also applicable, until late 1990, to monetary injuries sustained by the ...