The US DoJ brings its first criminal monopolization case in 50 years which relates to attempted monopolization in the construction sector (Nathan Nephi Zito)

A plea deal with a paving contractor follows the Department of Justice Antitrust Division’s ("DOJ") threat to resurrect criminal enforcement of the Sherman Act § 2 prohibition on monopolization and attempted monopolization.

A paving contractor pleaded guilty to attempted monopolization in DOJ’s first criminal Sherman Act § 2 case in five decades. According to DOJ, the contractor proposed to a competitor for publicly funded highway projects a market-allocation scheme in which the contractor would stop bidding in South Dakota and Nebraska if the competitor stopped bidding in Montana and Wyoming. The competitor reported the contact to the U.S. Department of Transportation ("DOT") and, in cooperation with DOT, recorded additional phone calls with the contractor.

Had the competitor accepted the contractor’s offer, DOJ could have charged both parties criminally under Sherman Act § 1, which prohibits conspiracies in restraint of trade. Section 1 was unavailable in this case, because the competitors did not agree to divide the market. Thus, DOJ charged the contractor with attempted monopolization, alleging that the two companies are "in many instances" the only bidders for highway projects in Wyoming and neighboring states.

For defendants, this new approach aims to criminalize "attempted Section 1 violations" (price fixing, market allocation, bid rigging), at least where the businesses involved together have a significant market share (raising the potential their behavior may lead to monopoly power).

For DOJ, despite obtaining a plea agreement here, winning future prosecutions will not be easy. The standards for criminal monopolization enforcement are not clear, which will raise due process questions for future defendants. Although the facts underlying this prosecution are analogous to those in prior civil enforcement actions, DOJ has not provided guidance on what conduct justifies a criminal challenge, since its announcement in Spring 2022 that it planned to revive criminal monopolization enforcement. Moreover, enforcers and civil plaintiffs have struggled to define the standards for civil monopolization under the preponderance of the evidence standard; it will be more difficult to prove monopolization beyond a reasonable doubt.

Despite those concerns, this case confirms that DOJ may bring criminal attempted monopolization charges it would otherwise prosecute under Section 1, but for lack of a key element—an agreement. Decades-old precedent also suggests that DOJ may add criminal monopolization claims in certain cases where its primary allegations relate to conspiratorial conduct punishable under Section 1. Nevertheless, criminal Section 2 prosecutions are likely to be rare given the difficulty in proving the elements of attempted monopolization—anticompetitive conduct, specific intent to monopolize, and dangerous probability of achieving a monopoly.

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Craig A. Waldman, John M. Majoras, Eric P. Enson, Bruce McDonald, Julia E. McEvoy, The US DoJ brings its first criminal monopolization case in 50 years which relates to attempted monopolization in the construction sector (Nathan Nephi Zito), 31 October 2022, e-Competitions Criminal sanctions, Art. N° 109417

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