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An interesting article recently published by the American Bar Association titled, “Federal Government Antitrust Enforcement – then and now,” discusses in part how DOJ and FTC antitrust enforcement has changed over the past 25 years.  For example, civil enforcement at the DOJ 25 years ago was relatively limited, with resources spent on classic bid-rigging and price-fixing cases.  Conversely, the DOJ’s recent high-profile civil cases have virtually all been Section I cases, including: (1) the DOJ’s lawsuit challenging Blue Cross Blue Shield’s use of most-favored nation clauses that the government alleges cause BCBS’s competitors to raise their prices: (2) the DOJ’s lawsuit challenging American Express, Visa and Mastercard for rules that prohibit price discounting by merchants; and (3) the DOJ’s e-books case, in which the government settled claims that various publishers conspired to end e-book retailers’ freedom to compete on price.  This shift in the DOJ’s civil antitrust enforcement focus is a reminder to businesses of the importance of consulting counsel prior to implementing policies that may have potential antitrust ramifications.

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