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12 - Civil Sanctions in Antitrust Public Enforcement

from Part I - General Chapters

Published online by Cambridge University Press:  29 July 2022

Tihamer Tóth
Affiliation:
Pázmány Peter Catholic University (Budapest, Hungary)
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Summary

The chapter discusses the structure of public enforcement in the US antitrust system, with particular emphasis on the use of civil sanctions in public enforcement of laws governing marketplace competition, and a focus on civil sanctions under the Sherman Act, FTC Act, and parallel state law in the United States. It then argues that the use of civil sanctions in public enforcement is inextricable from the supporting remedial structure, including criminal enforcement and meaningful private enforcement. The chapter explains the theory of civil fines in law enforcement and reasons for a jurisdiction’s choosing one or the other form of sanctions. It then explains the structure of remedies for antitrust violations in the US system, highlighting the three forms of public enforcement and the backstop of private enforcement. It then turns to recent developments in civil remedies, including punitive fines as well as damages and related civil monetary relief. It criticizes the Third Circuit Court of Appeals decision in Abbvie Inc. and interrogates the current Supreme Court case involving AMG Capital, inquiring whether AMG Capital might influence the interpretation of the FTC Act as it applies to competition law enforcement as well as consumer protection enforcement.

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Chapter
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Publisher: Cambridge University Press
Print publication year: 2022

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References

Antitrust Modernization Commission (AMC), “Report and Recommendations” (2007). Available at https://govinfo.library.unt.edu/amc/report_recommendation/chapter3.pdf.Google Scholar
Clark, J. Morris, “Civil and Criminal Penalties and Forfeitures: A Framework and Constitutional Analysis” (1976). Minnesota Law Review. 1526, pp. 379500.Google Scholar
First, HarryThe Case for Antitrust Civil Penalties” (2008). NYU School of Law Public Law & Legal Theory Research Paper Series,. 8, pp. 4363.Google Scholar
Hovenkamp, Herbert, “A Primer on Antitrust Law Damages” (2011). Faculty Scholarship at Penn Law. 1846, pp. 1–59.Google Scholar
International Competition Network (ICN), Cartels Working Group, “Setting of Fines for Cartels in ICN Jurisdictions” (2008; rev’d 2017). Available at www.internationalcompetitionnetwork.org.Google Scholar
Mann, Kenneth, “Punitive Civil Sanctions: The Middleground between Criminal and Civil Law” (1992). Yale Law Journal. 101, pp. 17951873.Google Scholar
Page, William H., “The Scope of Liability for Antitrust Violations” (1985). Stanford Law Review. 37, pp. 14451512.Google Scholar
Waller, Spencer Weber, “The Political Misuse of Antitrust: Doing the Right Thing for the Wrong Reason” (2020). Competition Policy International Antitrust Chron., available at www.competitionpolicyinternational.com/the-political-misuse-of-antitrust-doing-the-right-thing-for-the-wrong-reason.Google Scholar

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