While the Sherman Act prohibits specific bad practices, the Clayton Act was enacted to cover the grey areas. For example, mergers and acquisitions are obviously not against the law. But if an acquisition will limit competition too much, it can be blocked via the Clayton Act.
A recent example of this is publishing company Penguin Random House’s proposed acquisition of Simon & Schuster, another “big five” publishing house. In 2022, the Department of Justice ruled: “The proposed merger would have reduced competition, decreased author compensation, diminished the breadth, depth and diversity of our stories and ideas and ultimately impoverished our democracy.”
What it means for your business: If your business is growing and you’re thinking about acquiring a competitor, you’ll need to review the Clayton Act to make sure you aren’t creating a monopoly. Companies planning large mergers or acquisitions must also notify the government in advance. It’s worth noting that if a private party is harmed by conduct that violates the Sherman or Clayton Acts, the Clayton Act allows them to sue for triple damages.