DOJ Issues First Criminal Prosecution of Section 2 in Decades – McDermott Will & Emery
On October 31, 2022, the US Division of Justice’s (DOJ) Antitrust Division (Division) made good on its intention earlier this yr to revitalize efforts surrounding felony enforcement of Part 2 of the Sherman Act when the president of a paving and asphalt contractor in Montana pleaded responsible To at least one rely of Attempting to monopolize The market Needless to say enchancment providers in Montana and Wyoming. That is the Division’s first felony prosecution of A bit 2 case in roughly 50 yrs. Whereas felony enforcement of antitrust legal guidelines has traditionally focused on per se anticompetitive settlements between two or extra horizontal rivals, Part 2 primarily focuses on conduct by one agency or agency with vital market power. This announcement—and subsequent felony decision—marks An monumental departure from prolonged-standing DOJ antitrust enforcement of monopolization clpurposes and is a landmark Outcome for the Division’s continued enlargement of its felony enforcement efforts.
Most notably, seemingly unilateral conduct that “makes an try” to collude is now topic to felony prosecution beneath Part 2, Even when such an try Did not Finish in any settlement. In distinction, There’s not a “try” factor of a Sherman Act Part 1 cost, the place the Division has traditionally investigated and prosecuted per se felony worth fixing, bid rigging and market allocation conduct requiring an settlement or “meeting of the minds” between horizontal rivals.
Based mostly on courtroom paperwork, the DOJ alleged that Nathan Nephi ZiTo purposeed to monopolize the markets for freeway crack sealing providers administered by Montana and Wyoming by proposing that his agency and its competitor allocate regional markets. Zito approached a competitor A few “strategic partnership” and proposed that his agency would sprime competing for tasks administered by South Dakota and Nebraska and the competitor would sprime competing for tasks administered by …….
