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The Antitrust Revolution is Underway, But How Far Can It Go?

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  • The Antitrust Revolution is Underway, But How Far Can It Go?

    Soon after President Obama began installing the top antitrust enforcers in the land in the early months of 2009 — Christine Varney at DOJ and Richard Feinstein at the FTC — antitrust followers predicted that enforcement activities would start slowly ramping up. It was a new regime on the competition front, the thinking went. After eight years of lax enforcement, anticompetitive corporate behavior would once again meet its match.

    But has that happened? Not exactly. As the WSJ’s Thomas Catan writes in today’s paper, there’s one significant hurdle to a flood of new cases and example-making. Namely, the judges.

    Writes Catan:
    Over the past three decades, U.S. courts have sharply limited the scope of the 120-year-old Sherman Antitrust Act, which has been used to target companies from Standard Oil to Microsoft Corp. . . . The Supreme Court has accelerated the trend of late with rulings that made it even tougher to bring a successful antitrust case.

    Can the Democrats on Capitol Hill stem the “judicial tide?” Congress is going to try, with a series of legislative fixes.

    And antitrust enforcers might put some new tactics into play as well. The FTC, for one, wants to circumvent the courts’ narrow interpretation of the Sherman Act by reclaiming a legal tool it has hardly used in more than two decades—Section 5 of the 1914 law that created the agency.

    Invoked in the FTC’s Intel suit, that law allows the FTC to act against a company that engages in “unfair methods of competition.” The law largely fell into disuse after courts repeatedly slapped down the FTC for using it too broadly.

    The U.S. Chamber of Commerce staunchly opposes what it calls “the Section 5 revival movement.”

    And big business is otherwise girding for a fight. “Voters are demanding jobs and growth, but Washington is moving in the opposite direction by advancing an agenda focused on increased litigation against business,” said Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform, an offshoot of the Chamber of Commerce that seeks to ease the burden of civil litigation for businesses.

    Click here for a separate story out Monday by Catan and WSJ reporter Don Clark on a brouhaha involving FTC member J. Thomas Rosch. Rosch once advised Intel on antitrust matters. Now, as a member of the FTC, Rosch is playing a prominent role in the agency’s suit charging the chip giant with abusing its power over the microprocessor market.

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