Breaking Up is Hard to Do

Abstract

This article considers under what circumstances government enforcement agencies should seek remedial relief in respect of such companies and whether breaking them up is an appropriate form of relief if they do. While drawing on academic and other sources, my perspective is one from the trenches. I grappled with these issues as lead trial counsel for the 21 state plaintiffs in liability portion of the government’s §2 case against Microsoft and then again for more than seven years as enforcement counsel for the California Group of States. The D.C. Circuit’s unanimous en banc decision in U.S. v. Microsoft itself contains much learning with respect to these issues.

Keywords: monopoly, antitrust, breakups, structural remedies, Microsoft, tech, single-firm Conduct, Sherman Act § 2, market power

JEL Classification: K21