According to Docket Alarm analytics, thousands of antitrust lawsuits have been filed since 2019. The biggest targets are Tyson Foods, Google, and Norfolk Southern Railway, all of which have made news in recent months. Many antitrust cases are brought by the competition, and some high volume cases are consolidated into multidistrict action as more and more companies join the suit.
The federal government is more selective, and more targeted, in how it exercises its authority to enforce antitrust laws. Enforcement falls upon two separate agencies: the Department of Justice (DOJ) and the Federal Trade Commission. While their purviews overlap, a 2020 report found the agencies have different specialties and are rarely in conflict over who will handle a case. This analysis examines the DOJ’s antitrust enforcement from 2001 to the present.
Per the DOJ’s own database, since 2001, the agency has opened nearly 1,300 antitrust cases. Divided by Presidential terms, we see an average of 55.75 cases per year under the W. Bush administration, 76.5 cases per year under the Obama, administration, 41.75 cases per year under the Trump administration, and 27.23 cases per year thus far in Biden’s term.
When we examine cases by year of term, the trend over this time period suggests the third and fourth years of a presidential term contain the most cases opened. Therefore, if this trend holds, the last two years of Biden’s term could see an uptick in enforcement.
The technology industry has perhaps brought the biggest antitrust stories of recent years, but the top industry targeted by the Department of Justice is manufacturing. This could simply be due to the breadth of the category, defined in the DOJ’s data as companies engaged in the manufacturing of physical goods such as cars and car parts, chemicals, and commercial and residential buildings.
Technology, defined as companies involved in manufacturing electrical parts, such as capacitors, and software, including websites, categorized the second-most cases, particularly in Bush’s second term, Obama’s first term, and Trump’s presidency.
Agriculture, Shipping/Logistics, and Realty also made up sizable chunks; notably, the Realty segment largely features cases brought against individuals, rather than the corporations most commonly targeted by the DOJ in other sectors.
When looking at the charges levied in each of the cases, the most common three are Horizontal Price Fixing, Horizontal Market Allocation, and Bid Rigging. This suggests that most of the cases filed by the DOJ over the last twenty years have not been to stop monopolies forming, but rather against price-fixing conspiracies.
However, here we see a sharp contrast in the Biden administration compared to the previous three; Biden’s DOJ has stepped in to stop horizontal and vertical mergers in 30% of their cases, compared to 24% under Trump, 15% under Obama, and 12% under Bush. A plethora of cases contained other charges, some exclusively, along the lines of mail, wire, and tax fraud, and more procedural charges such as destruction of evidence.
The plurality of cases were filed in the DC District Court, followed by the Northern District of California, which contains the Bay Area; the Southern District of New York, which contains Manhattan; and the Eastern District of Michigan, which contains Detroit.
However, not all cases in which the DOJ is involved consist of the department enforcing the law. Since 2001, DOJ stepped in 107 times to provide an amicus brief or a statement of interest in an ongoing suit between two private parties. Many of the cases seen by the circuit courts and the Supreme Court fall in this category.
The data shows that the Biden administration is growing its enforcement measures against vertical and horizontal mergers, outstripping the prior administrations. But, at least according to former Labor Secretary Robert Reich, there’s more to be done. In a 2019 deposition before the Senate Judiciary Committee, he argued that monopolies and oligopolies run rampant through numerous sectors of the economy. Among other examples, he stated that seventy percent of all toothpaste is made by two companies and that four airlines control 80 percent of domestic airline seat capacity.