Month: October 2020

Ten Things: Sherman Act Section 1 – The Monopoly Man Cometh (Again) … and He’s Not Alone!

Antitrust law and Big Tech is hot right now.  BTS/Blackpink K-Pop hot.  Here in the USA at least, where the Department of Justice is on the verge of suing Google for (alleged) competition law violations, the DOJ and the FTC are waist-deep into investigating Big Tech generally, and a panel of the House of Representatives just issued a report calling for the break-up of Big Tech.  In Europe, regulators are looking at specific laws to dampen the influence of Big Tech by limiting certain tactics – and where Amazon is about to take its turn in the dock. Most of the behavior in question is what is known as single-firm conduct, i.e., companies acting alone but in ways that draw scrutiny from competition regulators and private litigants.  I wrote about this a while back in a post titled “Sherman Act Section 2 – The Monopoly Man Cometh.”  Clever title aside,[1] it is a fairly detailed look into single-firm conduct and where problems typically arise.  But, these investigations are also looking at Big Tech contracts and agreements.  So, now is a good time to take a look at Section 1 of the Sherman Act, i.e., agreements between one or more parties that may violate antitrust law.[2]  As you will see, it can be just as murky and confusing as Section 2 (and that’s saying something).  Unlike Section 2, however, it is typically easier to counsel the business on how to stay out of trouble when it comes to improper agreements vs. single-firm conduct.  And, no matter where you practice, most of the concepts below apply as competition law globally is similar when it comes to this issue.  This edition of “Ten Things” provides an overview of Section 1 and lays out some things you should be counseling your business colleagues on to help them avoid tripping up on anticompetitive agreements: