In spring 2022, the Department of Justice (the DOJ) announced its intention to aggressively pursue monopolization cases. While the DOJ is continuing its aggressive prosecution of criminal cases, it is also now utilizing alternative methods to pursue alleged monopolistic conduct. Specifically, the DOJ is using its amicus brief program to advocate for favorable positions in civil litigation. In the past year alone, the DOJ has filed amicus briefs in civil suits involving claims under both Section 1 and Section 2 of the Sherman Act. In some of these cases, the DOJ was ultimately successful in getting circuit courts to adopt its interpretation of the relevant antitrust issues. Assistant Attorney General Jonathan Kanter praised the decisions and noted they were “great examples” of the impact that the DOJ’s amicus program can have. Kanter stressed that “when we think we have something to add, or when we care deeply about an issue, our amicus program steps in.” Indeed, the administration has intervened in 25 cases in which it is not a party.

Not to be outdone, the Federal Trade Commission (the FTC) is also resorting to new tactics in its fight against alleged monopolistic practices. In December 2021, at the DOJ and FTC Joint Public Workshop on Promoting Competition in Labor Markets, FTC Chair Lina Khan advocated for enhanced federal agency rule-making to curtail perceived anticompetitive practices in labor markets. On Sept. 21, the FTC expanded the tools it can use to curtail these practices.