Federal Maritime Commission and Department of Justice Announce New Steps to Strengthen Antitrust Enforcement Efforts in the Shipping Industry

March 2, 2022

Building on our July 2021 alert regarding the signing of the first interagency Memorandum of Understanding (“MOU”) entered into by and between the Federal Maritime Commission (“FMC”) and the Department of Justice (“DOJ”), the DOJ and FMC on February 28 issued a joint release announcing additional steps that each agency would take to strengthen their partnership and support efforts to enforce the antitrust laws of the United States, reflecting their ongoing focus on promoting competition in the shipping industry.

In press releases posted to each agency’s website, the Antitrust Division of DOJ and the FMC disclosed that “the Justice Department will provide the FMC with the support of attorneys and economists from the Antitrust Division for enforcement of violations of the Shipping Act and related laws” and that “the FMC will provide the Antitrust Division with support and maritime industry expertise for Sherman Act and Clayton Act enforcement actions.” This interagency initiative highlights an increasing level of sophistication and an ongoing focus by both DOJ and FMC to investigate and enforce violations of the Shipping Act and the antitrust laws of the United States.

Simultaneously, the White House also on February 28 released a companion fact sheet that highlights ongoing enforcement efforts by the Executive Branch, with a particular focus on ocean carrier companies and alliances that operate in the container shipping industry. The fact sheet includes criticism of ocean carrier detention and demurrage fees and price increases, and contends that certain ocean carrier business practices have contributed to supply chain disruptions and port congestion. The fact sheet also notably states that the FMC will continue ramping up oversight of the global ocean shipping industry, and seeks additional reforms that “address the current antitrust immunity for ocean shipping alliances.”

As shipping industry participants have speculated that supply chain pressures may last well into 2022, we expect that the government’s focus on fair competition in the shipping industry will continue.

If you have any questions regarding the matters covered in this e-mail, please contact: Michael Considine (212) 574-1334, Bruce Paulsen (212) 574-1533, Brian Maloney (212) 574-1448 and Julie Hong (212) 574-1285 in the Litigation Group and Hoyoon Nam (212) 574-1640 and Michael Timpone (212) 574-1342 in the Maritime and Transportation Group.