The Antitrust Review of the Americas 2014

US: Unilateral Conduct

In the United States, potentially exclusionary unilateral conduct (ie, conduct that does not require an agreement between two or more parties) can be challenged by the US Department of Justice (DoJ), the Federal Trade Commission (FTC), state attorneys general (the Agencies) or private litigation brought in federal or state court. The principal federal statute, both for the DoJ and private parties, is section 2 of the Sherman Act (section 2).1 The FTC can also bring Sherman Act claims under section 5 of the FTC Act (section 5).2 In addition, in recent years, the FTC has actively debated the propriety of bringing ‘stand-alone’ cases under section 5 – that is, cases that would not suffice to support an action under the Sherman Act. As discussed in more detail below, this controversial use of section 5 has arisen in some of the more notable unilateral conduct matters brought this year in the United States.

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