What each statute covers
The Sherman Act addresses agreements that unreasonably restrain trade and conduct that unlawfully acquires or maintains monopoly power. Certain agreements between competitors, such as price fixing and bid rigging, are treated as illegal in themselves, while most other business arrangements are judged by their actual effect on competition. The Clayton Act fills in particular areas, most notably mergers and acquisitions that may substantially lessen competition, and it also gives private parties the right to sue for antitrust injury. New York has its own antitrust statute, the Donnelly Act, which the Attorney General and private parties can use alongside the federal laws. Understanding which part of the law your situation touches is the first step.
Who enforces them and how
The Justice Department's Antitrust Division can prosecute serious Sherman Act violations criminally, mostly hard-core cartel conduct, and it also brings civil cases. The Federal Trade Commission works mainly through its own statute and the Clayton Act, and both agencies review proposed mergers. Private plaintiffs, including competitors, customers, and class representatives, can seek treble damages and attorney's fees, which makes private litigation a significant force in the United States. State attorneys general also bring cases. An investigation may begin with a subpoena, a civil investigative demand, or, in criminal matters, a search, and the appropriate response differs for each.
When to bring counsel in
Contact with competitors about prices, customers, territories, or bids deserves legal review before it happens, including at trade association meetings. Exclusive dealing, loyalty discounts, and refusals to deal can be lawful or unlawful depending on market power and effects, which makes the analysis fact-heavy. If you have received a government request, preserve documents immediately and do not discuss the matter with competitors. The Justice Department runs a leniency program that can benefit the first company to report a cartel, so timing can matter a great deal. In a first consultation we look at the conduct, the market, and any government contact, and we discuss whether compliance changes, a defensive strategy, or a private claim under the Sherman and Clayton Antitrust Acts fits your situation.
