FTC, DOJ Seek Comments for Upcoming Hearings on Single-Firm Conduct

The Federal Trade Commission and the Department of Justice’s (DOJ) Antitrust Division today announced that they are seeking comments in connection with their planned joint public hearings on how best to identify anticompetitive exclusionary conduct for purposes of antitrust enforcement under Section 2 of the Sherman Antitrust Act.

The hearings, which will be held between June and December 2006, will examine whether and when specific types of conduct that potentially implicate Section 2 of the Sherman Antitrust Act are pro-competitive or benign, and when they may harm competition and consumer welfare.

The agencies are seeking comments from lawyers, economists, the business community, consumer groups, academics – including business historians – and other interested parties on two general subjects: the legal and economic principles relevant to the application of Section 2, including the ability to administer current and potential antitrust rules for Section 2, and the types of business practices that the agencies should examine in the hearings, including examples of real world conduct that potentially raise Section 2 issues.

The Federal Register notice contains a list of examples of particular types of conduct for possible discussion, ranging from bundled loyalty discounts to exclusive dealing and tying to refusals to deal, and also provides a list of sample questions for consideration.

Detailed agendas, locations, and schedules for the hearings will be available on the FTC’s home page, www.ftc.gov and on the DOJ’s single-firm conduct Web site, www.usdoj.gov/atr/public/hearings/single_firm/sfchearing.htm. Individuals seeking more information on the hearings should contact Susan DeSanti, FTC Deputy General Counsel, at sdesanti@ftc.gov or Gail Kursh, Deputy Chief, Legal Policy Section of the Antitrust Division, at singlefirmconduct@usdoj.gov.

The Commission vote to issue the Federal Register notice announcing the series of joint public hearings was 5-0.

Copies of the Federal Register notice can be found on the FTC’s Web site as a link to this press release. The FTC’s Bureau of Competition, in conjunction with the Bureau of Economics, seeks to prevent business practices that restrain competition. The Bureau carries out its mission by investigating alleged law violations and, when appropriate, recommending that the Commission take formal enforcement action. To notify the Bureau concerning particular business practices, call or write the Office of Policy and Coordination, Room 394, Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Ave, N.W., Washington, DC 20580, Electronic Mail: antitrust@ftc.gov; Telephone (202) 326-3300. For more information on the laws that the Bureau enforces, the Commission has published “Promoting Competition, Protecting Consumers: A Plain English Guide to Antitrust Laws,” which can be accessed at http://www.ftc.gov/bc/compguide/index.htm.