Federal anti-trust laws are enforced by the Federal Trade Commission ("FTC" or "Commission") and the Antitrust Division of the United States Department of Justice ("DOJ" or "Antitrust Division"). For the last 20 years antitrust doctrine and the antitrust enforcement policies of the FTC and the DOJ have continued to evolve, however, very few cases over the last 20 years have specifically dealt with trade associations and their activities. From a practitioner's standpoint, this is significant. Given the lack of new case law in the trade association arena, many legal practitioners, and trade associations, have continued to rely on old outdated case law when formulating their opinions and making their decisions. This reliance on misinformation often leads to passive, overly conservative, inefficient, and ineffective participation by trade associations within the industry. Often, practitioner’s and associations are much better consulting recent FTC and DOJ advisory opinions than relying on stale case law.

The Sherman Act was enacted in 1890 and gave the DOJ anti-trust enforcement authority. In 1914 Congress enacted the Federal Trade Commission Act. This was in response to a perceived need for an independent antitrust enforcement agency. The Federal Trade Commission Act provided more flexibility and a more detailed and encompassing antitrust law. As a result the DOJ and the FTC today share jurisdiction in most antitrust cases. (For instance, in April of 1995 the DOJ and the FTC jointly issued what are referred to as antitrust guidelines for the licensing of intellectual property.) The DOJ Antitrust Division may pursue both civil and criminal antitrust enforcement under the Sherman Act. In contrast, the FTC may only institute civil proceedings under the FTC Act or the Clayton Act.