USA – WASHINGTON, DC Trends and Developments Contributed by: Ashley Eickhof, Mark Weiss, Timothy Finley and Andrew Black, Baker McKenzie
Baker McKenzie LLP 815 Connecticut Avenue NW Washington, DC 20006 USA
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The Centre of Antitrust Policy and Enforcement in the United States The District of Columbia (DC) is the epicentre of US antitrust law. The importance of DC’s role in antitrust enforcement is undoubtedly driven, at least in part, by the two federal regulators responsible for the enforce - ment of US antitrust law – the US Department of Jus - tice, Antitrust Division (DOJ) and the Federal Trade Commission (FTC) – calling DC home. As the seat of the federal government, many of the key decisions that steer federal antitrust policy and enforcement originate in DC. These decisions influence antitrust priorities throughout the country. To understand the pivotal role of DC in US antitrust enforcement, it is essential to first delve into the spe - cific antitrust laws and legal framework that govern this jurisdiction. DC’s antitrust laws and legal framework Antitrust law in DC centres around federal antitrust law with support from the local DC Code. The federal antitrust regime is anchored by three cor - nerstone statutes. • The Sherman Act (1890) prohibits agreements that unreasonably restrain trade (Section 1) and bans monopolisation or attempts to monopolise (Sec - tion 2). It serves as the primary tool for challenging cartels, price-fixing, and exclusionary conduct. • The Clayton Act (1914) addresses practices that may harm competition before they fully develop. Notably, Section 7 prohibits mergers and acquisi - tions that may substantially lessen competition. Together with the pre-merger notification require -
ments of the Hart-Scott-Rodino Act, which is Section 7A of the Clayton Act, the federal agencies have the authority to review proposed mergers prior to close and to challenge mergers they view as anticompetitive. Additionally, Section 4 allows private parties and states to seek treble damages for antitrust violations. • Section 5 of the Federal Trade Commission Act (1914) prohibits “unfair methods of competition” and “unfair or deceptive acts or practices”, grant - ing FTC authority to address conduct that may not squarely fall within the Sherman or Clayton Acts. These statutes are enforced by the DOJ and FTC. State attorneys general enforce their own state anti - trust laws, and private plaintiffs often bring claims under the Sherman Act, the Clayton Act, and state law. The District of Columbia Antitrust Act largely mirrors federal antitrust law with two notable additions. • Indirect Purchaser Standing – under DC Code, Section 28-4509 (b), indirect purchasers may bring claims for damages, an option not available under federal law. • Federal Interpretation Guidance – DC Code, Sec - tion 28-4515 allows DC courts to consider federal court interpretations of federal antitrust law when construing local provisions. The premier forum for big tech cases For over 50 years, DC’s federal courts have been the primary forum for landmark government cases against big tech companies. The decisions in these cases
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