Best Frenemies: Evaluating the Dual Jurisdiction of the Federal Antitrust Agencies

Abstract

What happens when Congress grants two federal regulatory institutions dual jurisdiction over the enforcement of the antitrust law, but then fails to provide instructions on how to divide up the responsibility? The U.S. Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission (FTC) have concurrent jurisdiction over the enforcement of federal antitrust law in the United States. Historically, the DOJ and FTC have worked in tandem as a unified front, but tensions have been steadily increasing between the two agencies. These mounting tensions recently reached two very public boiling points. The first was in September of 2008, when the DOJ released a report detailing its enforcement approach under section 2 of the Sherman Antitrust Act of 1890. The FTC not only refused to join the report, but it also criticized the report for being excessively pro-business and non-interventionist. The second clash occurred on May 2, 2019, when the DOJ interfered in the FTC’s civil enforcement case against Qualcomm Inc. by filing a Statement of Interest in support of the company and in opposition to the FTC’s position. The DOJ’s actions further illustrated the growing cracks in the agencies’ methods for navigating their shared jurisdiction of enforcing the antitrust laws. This Note examines the current system that the two agencies have devised to determine which agency is in charge in the event of a dispute and argues that legislative change is necessary to protect the sanctity and future of antitrust law and enforcement in the United States.