On the whole, the dismantling of monopolies relies heavily on public enforcement. While the opportunity for private enforcement exists in the antitrust context, it is limited, as not all so-called "monopolies" commit antitrust violations. For example, where barriers to entry in a particular industry are high—such as in the case of phone carriers or airlines, both of which must build an infrastructure to support their business—sufficient competition may not exist to create options for the consumer. In situations like these, the federal government generally must step in to break up the monopoly. However, this interference happens infrequently, and these efforts are not always successful. Thus, public enforcement in the monopoly context might benefit from additional private enforcement. However, traditional private enforcement will not be available to break up effective monopolies which have not committed antitrust violations. One possible solution could be a form of private enforcement engineered via intentional monopoly breakup, where many smaller companies work in concert to undercut the price of the functional monopoly and later to disseminate its market share. Unfortunately, "private enforcement" of this type is likely to violate antitrust law in itself. However, from a policy standpoint, such violations ought to be permissible, because they achieve antitrust law's "fundamental goal of . . . protect[ing] consumer" welfare.
This Essay will argue that total reliance upon public enforcement to break up monopolies or effective monopolies is insufficient to protect consumer welfare and that the Department of Justice's Antitrust Division and the Federal Trade Commission should consider "private enforcement" via intentional monopoly breakup a complete defense to any antitrust violations. This argument will proceed in four main parts. First, it will develop the background of the eBooks industry's history as context for the United States v. Apple decision. Next it will discuss the United States v. Apple case, which highlights the consequences for corporations who try to privately break up existing monopolies under current law. This Essay will then determine some of the shortcomings of public enforcement in the antitrust sphere before detailing ways in which private enforcement through intentional monopoly breakup could be a preferable mechanism for prevention of monopolies.
Abby L. Timmons,
Antitrust Violations as Private Enforcement,
Notre Dame L. Rev. Online
Available at: https://scholarship.law.nd.edu/ndlr_online/vol95/iss1/5