The Law of Antitrust, An Integrated Handbook
Authors:
Sullivan, Lawrence A. / Grimes, Warren S. / Sagers, Christopher
Edition:
3rd
Copyright Date:
2016
23 chapters
have results for Hovenkamp, Herbert, Antitrust
Chapter 11. The Scope of Antitrust 164 results (showing 5 best matches)
- Id. at 352. Herbert Hovenkamp considers the Court’s reliance on the silence of Congress about regulating state activities “fictional” history. H. H § 20.2a, at 724 (2d ed. 1999). See also Hovenkamp & Mackerran,
- Ting v. AT&T, 319 F.3d 1126, 1143 (9th Cir. 2003) (“In deregulated markets, compliance with [generally applicable] law is the norm rather than the exception.”); Hovenkamp,
- See, e.g., Ting v. AT&T, 319 F.3d 1126, 1143 (9th Cir.2003) (criticizing doctrine because “[i]n deregulated markets, compliance with [generally applicable] law is the norm rather than the exception.”); H. Hovenkamp,
- Hovenkamp,
- Study of the scope of antitrust to some extent requires study of its relation to other regulation. While Americans have always believed to varying degrees in the legitimacy of some regulation, we have mostly purported to leave markets alone when they function reasonably well. And so, Congress and the courts have mostly followed the instinct that private markets should be regulated either by a politically accountable authority or by the discipline of competition kept healthy by antitrust. That is, they have displaced antitrust only where some other federal or state regulator is in place. Antitrust scope problems thus often occur where some regulatory program already applies, and courts must consider whether antitrust can apply as well.
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Chapter 6. Downstream Power Distribution Restraints 50 results (showing 5 best matches)
- A more qualified statement of concerns with recognizing market power inherent in brand differentiation is offered by Hovenkamp,
- “Horizontal and vertical restraints do not always threaten competition in different ways, or call for different analysis.” 7 Areeda & Hovenkamp,
- Another noneconomic argument is that antitrust law should be sensitive to fairness to individual competitors. One theorist points out that failure to show such concern in antitrust cases may simply move reactions to unfairness to other areas of trade regulation law, such as state unfair trade laws, state laws designed to protect the interests of franchisees or dealers, or common law. concerns out of the antitrust sector will not eliminate them and may result in unnecessary fragmentation of the law governing distribution, with fewer national and more conflicting or inconsistent state trade law norms. At least in all cases in which other antitrust values are also implicated, fairness disputes involving trade regulation matters might more efficiently and justly be resolved under a single, comprehensive antitrust umbrella.
- Consistency, clarity and sound policy results are probably all furthered by an analysis that assumes the primacy of economic goals in determining antitrust policy. Economic primacy can create an antitrust law that is more discernable and logically consistent. Fairness goals will, in any event, often be encompassed within economic goals. For example, antitrust may properly address elimination of an individual competitor if there is harm to allocative efficiency or the market dynamics that promise innovation and future economic growth.
- Exclusive dealing is relatively easy to implement, and with low legal risks, when it is part of the original distribution plan of a producer. Legal risks mount when, in order to implement exclusive selling, the producer must terminate one or more existing distributors. A terminated distributor, particularly if it has substantial investment sunk in carrying the producer’s line, is more likely to seek relief under the state or federal antitrust laws, unfair competition law, or any other available remedy. For possible antitrust remedies open to such a distributor, see the discussion in §§ 6.5b5 and 6.6
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Chapter 13. Government Enforcement 77 results (showing 5 best matches)
- California v. ARC Am. Corp., 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989). See also Hovenkamp,
- A unique feature of antitrust enforcement in the United States is the multiplicity of potential enforcers: there are three types: (1) federal agencies, (2) state and local agencies, and (3) private parties. Two federal agencies, the Antitrust Division of the Justice Department and the Federal Trade Commission, have overlapping jurisdiction to enforce most provisions of federal antitrust law. State and local governments, as well as private parties, may also bring suit to enforce the federal antitrust laws. Each of these parties, except the federal agencies, may also enforce various provisions of state antitrust laws.
- The Antitrust Division can influence antitrust compliance and enforcement in a number of other ways. A speech on a law enforcement topic delivered by the head of the Antitrust Division may affect the advice antitrust lawyers give to their clients. The various guidelines issued by the Division (more recently, jointly issued with the FTC) also shape antitrust law and the level of compliance. In addition to merger guidelines, the Division and the FTC have jointly issued guidelines addressing international operations, intellectual property, health care and joint ventures among competitors. The Division has issued guidelines on criminal sentencing. Except for the Criminal Sentencing Guidelines, each of these documents purport to describe only the approach and standard used by the Division and the FTC in determining whether to challenge potentially anticompetitive conduct. The impact of the guidelines, however, can be much broader. Because of the agencies expertise and reputation, courts,...
- Suits brought by a state attorney general can be based on federal or state antitrust statutes or on common law. Jurisdiction of any state suit based on federal antitrust would be in a federal court. A claim based on state antitrust law or common law could also be in a federal court if appropriately pendent to a federal claim. A federal antitrust claim may be brought on behalf of the state as an injured victim (e.g., as a buyer of a commodity subject to inflated monopoly or cartel prices) or as a protector of the public interest (
- In addition to actions brought by state attorneys general, local prosecutors sometimes bring antitrust actions. The majority of states expressly authorize local officials to institute antitrust actions. But active enforcement is probably limited to a small number of prosecutors who employ antitrust specialists, usually within their consumer affairs division. For example, the Los Angeles District Attorney’s office has an Antitrust Section as a part of its Consumer Protection Division. That office typically assigns two or three attorneys full-time to antitrust investigations. Other cities whose prosecutors have employed antitrust specialists include New York, Philadelphia, and San Diego. Often, local prosecutors have concurrent jurisdiction with the state attorney general to enforce the state’s antitrust statute and may work closely with the attorney general’s office in investigating and prosecuting cases.
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Chapter 14. Private Enforcement 186 results (showing 5 best matches)
- The Scope of Liability for Antitrust Violations,
- (1986); Hovenkamp,
- Concern with the possibility that private suits might overdeter has had substantial influence on the Supreme Court’s antitrust jurisprudence of the past quarter century, resulting in a consistent pattern of dismissal of private suits. In the next section, we examine a number of limitations, mostly judicially imposed, on a private party’s antitrust claims. The most important of these limitations—requirements of antitrust standing and standards for summary disposition of antitrust cases—have greatly inhibited private enforcement.
- The plaintiffs satisfied the constitutional standing requirement. There seems little doubt that plaintiffs were alleging an injury in fact, and that the injury flowed from the allegedly illegal acquisitions. But the Supreme Court erected an antitrust injury requirement that bars recovery for an antitrust claim in which the plaintiff’s injury does not flow from something that the antitrust laws were designed to prevent. Some antitrust violations result in competitive benefits as well as competitive harms. They are unlawful not because of the benefits but because the competitive harms outweigh the benefits. Thus, even assuming that the Brunswick company’s acquisition of the bowling alleys was unlawful, the antitrust laws were not designed to prevent such competition as might flow therefrom. Had the plaintiffs alleged that the acquisitions ...—say, for example, through strategic behavior that would have blocked plaintiff’s access to customers or suppliers—the antitrust...
- both stress the plaintiff’s incentive incompatibility in holding that antitrust injury is not established. Although not focusing on incentive incompatibility, too, could be seen as a holding that the plaintiff had incentives incompatible with the antitrust laws. But an antitrust standing analysis cannot focus exclusively on incentive incompatibility. In many instances, plaintiffs may have a variety of incentives, some of them consistent, some of them inconsistent with the purposes of the antitrust laws. For example, a competing firm suing to enjoin an allegedly unlawful merger may fear the greater efficiencies generated by the merged entity. A fear of increased competition from a more efficient rival is an incentive that may be inconsistent with the purposes of antitrust law. Still, it is quite possible that the same merger that generates efficiencies also generates market power. A plaintiff may quite logically fear that the market power will be exercised strategically to punish...
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Chapter 10. Joint Ventures 60 results (showing 5 best matches)
- The Antitrust Analysis of Joint Ventures After the Supreme Court’s
- Antitrust Guidelines for Collaborations Among Competitors
- A venture’s degree of managerial interaction varies with its structure and operations. To some extent, the problems discussed in this subsection can be mitigated by antitrust compliance policies deliberately built into the venture itself. Section 10.6 discusses various devices that a court or agency might impose to reduce collusion dangers after a venture is found unlawful. Such devices could also be introduced into the venture by the parties at the time of formation in order to reduce the risk of an antitrust attack.
- would be of antitrust concern. As one example common in antitrust cases, competitors might establish a production or research venture to develop a new product, and agree among themselves on pricing or exclusive territories. Courts have no trouble seeing the benefit in the integrative collaboration itself, and would be very unlikely to find it objectionable under antitrust. But they have much more concern with the problematic side agreements that sometimes accompany them, and have struggled to understand them. Their anticompetitive risk is obvious, but venture members will claim that they offer benefits key to the venture’s success. In this hypothetical, for example, venture members will say that if the research and production effort is immediately followed by unlimited price competition among them, they will lose the benefit of doing it, and would not have done it in the first place. Nowadays, though there is still no real guidance on it from the Supreme Court, lower courts handle...
- It is sometimes asserted that antitrust poses an excessive threat to joint research. In 1984, Congressional concern led to the National Cooperative Research Act (later incorporated in a broader cooperative research and production act), in which two protections were provided: joint research was made subject to the rule of reason; and if the Department of Justice were notified of a joint research project, only actual (non-trebled) damages could be awarded, should the project thereafter be held to violate the antitrust laws. There was in the early 1980’s entrepreneurial concern that antitrust risks to joint research were high. But this concern itself was excessive. The rule of reason has always been the applicable norm for evaluating any significant integration, certainly including joint research. Thus, that provision of the 1984 Act carried over to the 1993 Act was superfluous. Selective detrebling, although perhaps of some value here to reduce excessive and unneeded entrepreneurial...
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Chapter 3. Monopoly, Monopsony and Attempts or Conspiracies to Monopolize 51 results (showing 5 best matches)
- . 1 (1994), and Hovenkamp,
- . 373, 383–84 (1974). For more recent statements on the value of empiricism in antitrust analysis, see Salup,
- The dissent urges a radical departure in this Court’s antitrust law. 504 U.S. 451, 479 n. 29, 112 S.Ct. 2072, 119 L.Ed.2d 265. It argues that because Kodak has only an “inherent” monopoly in parts for its equipment, post, at 489–490, the antitrust laws do not apply to its efforts to expand that power into other markets. The dissent’s proposal to grant immunity to manufacturers competing in the service market would exempt a vast and growing sector of the economy from antitrust laws. Leaving aside the question whether the Court has the authority to make such a policy decision, there is no support for it in our jurisprudence or the evidence in this case.
- An overall assessment of the competitive effects of high tech, product-integration tying is not complete without a careful examination of the role of networking efficiencies. A dominant firm is likely in industries with strong networking efficiencies. As in any industry, superior skill and foresight can lead to a firm earning a substantial market share. But once a firm has become the largest in the industry, networking efficiencies may create a momentum that leads to dominance. This momentum is directly linked to efficiency—the more people in the network, the more useful the network. So how is antitrust law to deal with such industries? The —one that such industries deserved heightened antitrust scrutiny —the other that antitrust should move cautiously because the drive to obtain incumbency in an industry with networking efficiencies can encourage innovation.
- rule of reason debate from the judicial debate in earlier years is that ideological sides have shifted. At that earlier stage it was those who trusted markets highly and championed allocative efficiency as an antitrust goal who urged judicial analysis and balancing under the rule of reason. They feared excessive illegality. Today, it tends to be those most concerned with market failures and who insist that antitrust should be concerned about wealth transfers as well as allocative efficiency who urge that courts can balance well enough. Their fear is excessive
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Chapter 1. Antitrust and the Market Mechanism 86 results (showing 5 best matches)
- Members of the private antitrust bar also influence antitrust policy and goals. Although private suits have been curtailed, they still vastly outnumber public enforcement initiatives. Almost all of the Supreme Court’s important decisions of the last four decades have come in privately initiated antitrust suits. Additionally, through the advice of inhouse counsel or the guidance of outside law firms, private antitrust attorneys are instrumental in assuring antitrust compliance by countless firms.
- From all of the sources described in § 1.4, the contemporary goals of U.S. antitrust policy can be traced. Antitrust’s overriding goal is to maintain the market mechanism by punishing instances of economic oppression. Antitrust preserves and protects markets as an alternative to more intrusive government regulation or control of the economy. To fulfill this role without overstepping, theorists have offered more specific economic and social goals that serve to delimit antitrust.
- All that said, however, antitrust has been characterized throughout its life by change and controversy. So, after first exploring modern competition law’s universal basis in the protection of markets, this chapter turns to the law’s origins and its evolution over time. It begins with the circumstances that underlay adoption of the Sherman Act in 1890 as the basic U.S. antitrust law. The United States has one of the oldest competition laws and is the first nation to establish credible enforcement institutions. It then considers how the law and its goals have changed. Here, as elsewhere, antitrust has adapted to unique national experiences. It then concludes with a description of the role of economics in contemporary antitrust and an assessment of the contemporary challenges the law still faces.
- Antitrust laws by their nature place primary reliance on market forces to discipline economic behavior. If a monopoly or a cartel is created, the antitrust laws may be invoked to restore diffused power, but once that competitive balance is achieved, there should be no need for continuing government oversight. As we might now put it, the “invisible hand” of the market provides the discipline. For Americans who mistrusted both big government and big corporations, the antitrust laws seemed well-suited as a remedy for the abuses of large corporations.
- Some of the major shifts in U.S. antitrust policy can be briefly described. During the Presidency of William Howard Taft (1909–1913), antitrust enforcement was vigorous. For a fifteen-year period extending from 1920 through 1935, it was tepid, perhaps reaching a low point during the first years of the Great Depression. During the first term of President Franklin Roosevelt, the Government experimented with government-sanctioned cartels as a means of dealing with depressed industries. But in his second term, antitrust gained new vitality after the appointment of a forceful new head of the Justice Department’s Antitrust Division, Thurman Arnold. By the late 1930s, cartel conduct had become widely associated with totalitarian governments, increasing the political support for a strong antitrust policy. ...antitrust enforcement probably reached its peak in the 1960s. By the mid-1970s, a sense that some court decisions had suppressed conduct that was efficient and the contemporaneous...
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Chapter 9. The Antitrust Law of Mergers and Acquisitions: The Substantive Cause of Action 33 results (showing 5 best matches)
- The use of an incipiency doctrine in the vertical context, as in the horizontal context, thus comes down to a showing that stopping a trend toward vertical integration serves other valid antitrust goals. If no showing is made that a trend toward vertical integration threatens to undercut ease of entry, innovation, or other valid antitrust goals, the trend itself is no basis for antitrust relief.
- presumption, merger law depends heavily on market definition, and merger challenges frequently live or die on whether plaintiff can show that its definition is the right one. That said, however, market definition in merger cases is largely the same as market definition in all other antitrust cases, and indeed courts often cite the market definition rules of the in non-merger antitrust cases.
- The follow-the-leader effect of mergers need not be a concern of antitrust unless the trend toward concentration threatens injury to the major substantive goals of merger enforcement. If adequate competition remains after the dominos fall, and if each of the mergers in the sequence yields efficiencies, the public benefits. Perhaps a more careful and defensible interpretation of the incipiency doctrine is that it is designed to stop a trend toward concentration at the first point at which the threat of significant anticompetitive effects becomes evident. At a time in which maintaining the viability of small business was considered a goal of antitrust enforcement, it might have made sense to stop a merger between two firms holding small percentages of the market simply because of the potential lemming effect of that merger. But that result would be viewed as highly questionable today. If a merger threatens no other substantive antitrust goal, or if it promises efficiencies that...
- but seems to have all but disappeared from the antitrust decision-making calculus. For horizontal mergers, an incipiency doctrine is defensible when based on pro-competitive goals of antitrust enforcement. Incipiency does not warrant trying to stop a trend when each merger is efficiency justified.
- Consider, for example, FTC v. Lundbeck, 2010 WL 3810015 (D. Minn. 2010), aff’d 650 F.3d 1236 (8th Cir. 2011), which rejected challenge to a merger of the only two drugs in existence to treat a particular, life-threatening condition, because on the court’s view the Commission failed to put on sufficient evidence defining the drugs’ market. Id. at *21–22. It did so even though the merger was followed by a 1400% price increase and could not even arguably have generated any benefits. See Hovenkamp,
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Chapter 12. Antitrust and Intellectual Property 146 results (showing 5 best matches)
- Antitrust analysis affords greater leeway for integrating the ex ante allocative concerns of IP with antitrust’s conventional ex post concerns because antitrust often requires a specific, fact-focused analysis of allocative issues. While antitrust does have categorical rules, most antitrust issues fall under a full or truncated rule of reason, or at least the analytically enhanced presumption-approach that increasingly displaces cut and dried . In many instances, therefore, an antitrust court must do more than assign an event to a legislatively specified category; it must do a fact specific allocative analysis. However, this necessity does not of itself assure integration of the IP ex ante and the antitrust ex post allocative perspectives. To the contrary, just as courts in IP cases often ignore whether the uses to which IP is being put can do allocative harm that outweighs the efficiency benefit of having encouraged the innovation, so too antitrust courts may focus so sharply on...
- Because of IP’s practical link to strategy, IP issues and antitrust issues sometimes (indeed, in high tech markets, often) interact. These two bodies of law are often perceived as conflicting. Antitrust responds to market power abuses. IP tolerates or even fosters the creation of market power (although not its abuse). There may be circumstances in which the two systems cannot be reconciled, but a premise of this chapter is that IP and antitrust can and should be complementary. Apparent conflicts can usually be reconciled or mitigated. While both antitrust and IP can be multi-valued systems, a key goal of each is the same: consumer welfare resulting from efficient resource allocation. Beyond allocative efficiency, both systems support the all-important goal of dynamic efficiency: the fostering of changes, innovations, and technological progress. This commonality is the key to accommodation.
- While antitrust can and often should take dynamic factors into account, the major allocative problem antitrust routinely addresses is that once a technology is on line it may be exploited by strategies that expand, reinforce or abuse market power. Antitrust seeks to optimize resource allocation by prohibiting conduct having the purpose and effect of foreclosing market access unless that conduct can be justified as yielding offsetting efficiencies, and by foreclosing cartelization among competitive or potentially competitive firms. These prohibitions tend to assure prices closely related to costs, except where power is earned by innovation or efficiency. Antitrust also tends to facilitate rapid commercialization and wide deployment of innovations.
- Antitrust has no comprehensive answer to the public choice problem. Antitrust enforcers, and congressional committees that have oversight over antitrust may be less subject to the lobbying pressures of powerful industry groups, and in that sense may provide a modest counterweight to public choice concerns. Courts should also be aware of the public choice issue. Where not clearly condoned by IP law, courts may protect the public interest by being alert to abusive IP practices that do not further, and may obstruct, innovation goals.
- Aggressive competition alone does not violate the Sherman Act. Hence, most strategic uses of intellectual property do not give rise to antitrust issues. A routine assertion of statutory proprietary rights may distort resource allocation to the extent that, in the given context, the rights these statutes grant are either too narrow or overbroad. But where Congress has clearly struck the balance, no court has a credential to fine tune statutory outcomes either in IP cases or antitrust cases. A patentee may lawfully occupy that market or market segment alone, excluding all others, and charging such prices as the market will bear; even if an economic monopoly is the result, doing these things is within the patentee’s statutory right. ...an intellectual property right is based on trade secret, trademark, trade dress or other interest bottomed on state law, federal antitrust could preempt as a matter of constitutional theory. But as described in Chapter 11, the state action exemption might...
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Chapter 2. Market Power as a Basis for Antitrust Enforcement: Effects and Measurement 71 results (showing 5 best matches)
- An awareness that antitrust has different thresholds of market power should not undermine the core definition of market power, which is as firmly rooted in principle as the politically driven vicissitudes of antitrust allow. Inelastic demand—the ability to raise or maintain price above the competitive level—is the starting point for antitrust analysis of market power.
- Despite wide acceptance among economists that market power equates with the power to raise or maintain prices above the competitive level, and numerous antitrust decisions consistent with it, a number of theorists reject this definition as a basis for antitrust intervention. decision and its confirmation that market power may exist in a single brand, they are less concerned with economic fundamentals and more with the perceived antitrust consequences. Critics argue that: (1) the definition is based upon a model of perfect competition that does not comport with market realities; (2) adoption of the definition will promote an activist antitrust agenda that could suppress procompetitive behavior; and (3) the definition is inconsistent with antitrust jurisprudence.
- Much of this criticism is apparently driven by concern that a power over price definition could lead to expansion of antitrust intervention in single brand markets and is addressed in that context in § 2.4e1. Whatever antitrust’s role in addressing single brand market power has been or will become, there is no principled basis for excluding a fundamentally sound economic definition from the world of antitrust.
- Market power—defined as power-over-price that is more than transitory and involves a significant price range—is a necessary but not a sufficient basis for antitrust intervention. This fundamental precept of antitrust is not revolutionary—but offers hope of greater clarity and transparency in antitrust analysis.
- Even if antitrust injury is present, Shapiro argues that no readily manageable antitrust remedy is available to the courts. The high prices charged for aftermarket products and services cannot reasonably be regulated through judicial decree. The point is well taken, and demonstrates the folly of an antitrust policy that is directed at market power detached from additional abusive or exploitative conduct. But antitrust can and should address the abusive conduct itself by prohibiting a harmful intrabrand distribution restraint (such as an anticompetitive tie-in).
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Chapter 7. Distribution Restraints Based on Upstream Power: Foreclosure and Vertical Maximum Price Restraints; Franchising Abuses 91 results (showing 5 best matches)
- A primary objection to recognition of relational market power is that such power is common in franchise relationships and might invite firms to raise antitrust claims in routine contract disputes. There are four evident antitrust rules that would limit invocation of relational market power in franchising disputes: (1) a plaintiff must demonstrate the existence of relational market power—the conditions giving rise to this power exist in many but not all franchise relationships; (2) relational market power, even when it exists, may not be a basis for an antitrust remedy when a tying dispute involves an insubstantial volume of commerce; (3) relational market power gives rise to an antitrust violation only when coupled with an abusive exercise of that power that threatens substantial competitive injury; and (4) the franchisor may invoke any valid defense to forestall the franchisee’s antitrust claim, including defenses based on the need to protect the good will of the franchise system.
- Antitrust problems of all types can occur in a franchising context. The most frequently occurring ones are those related to franchisor market power arising from a continuing vertical relationship. This relational market power, described in § 2.4e2iv, gives rise to antitrust claims associated with seller power, including tie-ins, forced exclusive dealing, vertical maximum price fixing and monopolization or attempted monopolization.
- Of course, informational market imperfections are ubiquitous and not typically the target of antitrust enforcement. Antitrust cannot and should not attempt to prevent consumers from making ill-advised purchases under a broad variety of conditions. But when sellers invoke tie-ins and related practices that have long been the province of antitrust law, an analysis of informational deficiencies is both inevitable and necessary. A seller that uses a tie is acting voluntarily and, in many cases, consciously to exploit these deficiencies. In contrast, a seller that takes no special action to exploit such imperfections is, in effect, a passive beneficiary of additional sales that might arise from informational voids. When tie-ins or other traditional practices involving antitrust are involved, the courts should not be asked to wear blinders concerning informational issues.
- Although some theorists have harshly criticized single brand market power, the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc. expressly acknowledged that valid antitrust claims can be based on power of this kind. , venerable antitrust precedents in areas such as vertical restraints and tie-ins had established that market abuses based on a seller’s power over a single brand could violate the Sherman Act. This history is summarized in § 2.4e. Criticism of single brand market power as a basis for antitrust relief persists, and is addressed in § 2.2b.
- Although such prophylactic measures may have reduced the number and severity of misrepresentations, disputes between franchisor and franchisee have by no means been eliminated. Indeed, the separation of ownership and control is a breeding ground for conflicts, many of which end up being litigated. The antitrust claims described in this chapter have played a significant role in addressing potential abuses that occur in franchising. The next section examines the economics of franchising, a necessary platform for sound antitrust analysis.
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Chapter 8. The Antitrust Law of Mergers and Acquisitions: Background and Enforcement Institutions 81 results (showing 5 best matches)
- Many of the mergers subject to the scrutiny of United States officials were also investigated by foreign antitrust authorities, producing a few notable conflicts (as when the FTC approved the McDonnell Douglas/Boeing merger but European antitrust authorities imposed strict conditions on it). See § 8.2d.
- See, e.g., Report of the American Bar Association, Section of Antitrust Law Task Force on the Antitrust Division of the U.S. Department of Justice 26–30 (1989) (describing the perception that during the 1980s the Division didnot rigorously enforce its own
- Report of the American Bar Association, Section of Antitrust Law Task Force on the Antitrust Division of the U.S. Department of Justice 26–30 (1989).
- Federalism and the Enforcement of Antitrust Laws by State Attorneys General, in
- The antitrust injury rule and the problem of antitrust standing generally are discussed in more detail in § 14.2. The law of predatory pricing and the difficulty of bringing such claims are discussed in Chapter 4.
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Foreword to the First Edition 2 results
- We think of antitrust as law, not free form policy. Antitrust, at any stage, is shaped by the interplay of the legal rules previously laid down (however broad or general these may be) with current political, economic and theoretical forces. Our effort has been to describe this process and to distill from it what we view as antitrust law today. Because antitrust law is constantly evolving, we have sought to describe the law’s central principles in their developmental contexts. While we have often disclosed our own (usually consistent) views on significant policy issues, we have tried fairly to summarize alternative positions and contentions. Because we are convinced that each of antitrust’s developmental stages is related to an existing or emerging consensus about the needs and opportunities of the economy, we view current policy debates less as efforts to stake out solid, normative base lines than as parts of the ongoing developmental process.
- The Hornbook on the Law of Antitrust by one of the authors was published by West in 1977 to meet the needs of students and practitioners for adequate treatment of major antitrust areas. Although the purposes of this volume are essentially the same and its title similar, this is not a revision of that work but a new book that is responsive to changes in the economy (e.g., increasing dynamism and globalization), in economic theory (e.g., analysis of network efficiencies), in prevailing attitudes about how theory should be applied (e.g., post-Chicago analysis), in related policy areas (e.g., deregulation) and, reflexively, in antitrust itself. The book addresses new areas, treats a number of areas more fully, and thoroughly reassesses core concepts like monopolization and horizontal and vertical restraints.
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Chapter 15. Antitrust in Global Markets: The Extra Territorial Reach of Unilateral Rules; Comparative Antitrust; and Conflicting National Requirements and Bilateral and Multilateral Efforts to Resolve Them 143 results (showing 5 best matches)
- 15.6 Comparative Antitrust: Similarities and Differences Between U.S. and EU Antitrust
- Export restraints by some U.S. firms that impinge on the export opportunities of their other U.S. competitors are antitrust vulnerable. Yet, U.S. extraterritorial antitrust enforcement, markedly aggressive when addressing foreign conduct hurting U.S. markets, is far less aggressive in dealing with U.S. domestic conduct affecting foreign markets. The extraterritorial reach of U.S. antitrust as applied to export commerce is limited in several ways. The Foreign Trade Antitrust Improvement Act of 1982 (FTAIA) explicitly states facts that must be proved to invoke the Sherman Act for foreign commerce. Section 7 of the Act states that the Sherman Act:
- Governments not only regulate, they sometimes act commercially. If they do, their undertakings or enterprises in or affecting U.S. markets could be subject to U.S. antitrust scrutiny. There are three possible antitrust defenses that can arise only when a significant element of the challenged transaction is influenced by the law or acts of a foreign sovereign. As an ABA monogram summarizes it:
- § 15.6 Comparative Antitrust: Similarities and Differences Between U.S. and EU Antitrust
- U.S. antitrust lawyers may view U.S. law as purer than that in the EU. Industrial policy, even international trade policy, is likely to influence EC antitrust outcomes, a circumstance that suggests that EC antitrust law is wider ranging than U.S. law. But it would be difficult to support the proposition that that EC enforcers are protective of As trading nations respond to globalization, one of the risks to antitrust is that it will be increasingly treated as an aspect of trade policy. That risk is probably no greater in the EU than it is in the United States. It should be resisted everywhere.
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Table of Contents 45 results (showing 5 best matches)
- § 11.5. Some Normative Perspectives on Antitrust Scope and on the Relation of Antitrust to Regulation
- § 15.6. Comparative Antitrust: Similarities and Differences Between U.S. and EU Antitrust
- CHAPTER 15. ANTITRUST IN GLOBAL MARKETS: THE EXTRA TERRITORIAL REACH OF UNILATERAL RULES; COMPARATIVE ANTITRUST; AND CONFLICTING NATIONAL REQUIREMENTS AND BILATERAL AND MULTILATERAL EFFORTS TO RESOLVE THEM
- CHAPTER 1. ANTITRUST AND THE MARKET MECHANISM
- § 1.2. Antitrust as a Response to Private Economic Power
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Chapter 5. Horizontal Restraints 107 results (showing 5 best matches)
- Oligopoly, Shared Monopoly, and Antitrust Law
- What Happened to the Antitrust Movement
- If a firm engages in coercive conduct of a kind associated with some form of injury to competition that has little or no potential for competitive benefits, almost always it can be rationally condemned without a power analysis. For example, a firm may attempt to drive a rival from the market by disparaging its product, by sabotaging its production, or by convincing a labor union to target the rival in a strike action. Most of these actions are likely to violate laws other than the antitrust laws, but they may also violate Section 1 of the Sherman Act. In many cases, the disparagement of a rival’s product may be undertaken as part of a boycott, a practice condemned in traditional antitrust enforcement. Despite venerable roots in boycott law, coercion as a basis for antitrust intervention is not a well-defined concept. Its use as an independent basis for antitrust intervention could produce undisciplined interpretations. ...vertical restraints, it is a proper determinant of antitrust...
- When the Justice Department first announced its investigation of the financial aid practices of the Ivy League schools, some critics questioned the wisdom of this use of prosecutorial discretion. Assuming the antitrust laws apply to nonprofit educational institutions, this particular application of limited government enforcement resources seemed difficult to justify. In the case, the dissenting opinion argues that the antitrust laws do not apply to financial aid activities of nonprofit educational institutions. Although it is clear that the commercial activities of nonprofit groups are subject to the antitrust laws, ...of such schools is beyond the intended reach of the Sherman and Clayton Acts. Relatedly, one might reason that if two or more charities devoted to feeding the hungry were to divide territories for benefit distribution in order to assure reasonable uniform regional coverage, the antitrust laws should be irrelevant. If the majority had accepted such a noncoverage...
- The Antitrust Economics of Credit Card Networks
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Summary of Contents 27 results (showing 5 best matches)
- § 11.5. Some Normative Perspectives on Antitrust Scope and on the Relation of Antitrust to Regulation
- § 15.6. Comparative Antitrust: Similarities and Differences Between U.S. and EU Antitrust
- CHAPTER 15. ANTITRUST IN GLOBAL MARKETS: THE EXTRA TERRITORIAL REACH OF UNILATERAL RULES; COMPARATIVE ANTITRUST; AND CONFLICTING NATIONAL REQUIREMENTS AND BILATERAL AND MULTILATERAL EFFORTS TO RESOLVE THEM
- CHAPTER 1. ANTITRUST AND THE MARKET MECHANISM
- § 1.2. Antitrust as a Response to Private Economic Power
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Foreword to the Third Edition 5 results
- of antitrust in cases involving antitrust immunities and in another unanimous decision tightened its rule for “single entity” treatment under Sherman Act Section 1. And in its first ruling for a plaintiff going to the actual merits in more than twenty years, the Court in 2013 adopted a pro-competitive (albeit perhaps difficult-to-enforce) rule to resolve the long running drama of “pay-for-delay” pharmaceutical settlements.
- The ten years since the last edition have seen potentially momentous changes in federal antitrust law. Their consequences are only beginning to be understood.
- The passage of years and the variety and gravity of change called for significant revision. Entirely rewritten chapters now cover merger law and the Hart-Scott-Rodino process, the law of joint ventures, and the scope of antitrust. Other chapters have been substantially revised as well, including horizontal restraints and the law of distribution. In all, nearly half the book is new or significantly revised.
- An active and activist Supreme Court has taken a large number of antitrust cases and, through them, worked many changes. The Court capped a three decade-long exercise in loosened vertical restraints rules, finally ending the century-old ...reverence for a monopolist’s freedom of action, even when that course invites strategic conduct potentially harmful to new entrants, small business, innovation, and consumers. And it set up what some foresee as a potent new exemption for federally regulated actors, at least within the financial sector. Perhaps even more consequential were the Court’s many procedural rulings, beginning with tough, controversial new pleading rules, followed by demanding rules for class certification, expert testimony, and mandatory arbitration. For its upcoming Term the Court has granted certiorari in a closely watched case in which it may require proof that all class members are injured prior to certification. That result could severely restrain private antitrust...
- There is some reason to believe these changes have taken a practical toll. New private antitrust filings began a downward trend in about 2009 that, with one brief exception during 2012, has not abated. The number of new case filings is roughly half of what it was before the Court began the recent wave of restrictive rulings. This reduction in private enforcement comes at the same time that government enforcers have experienced substantial cuts in budget and staffing.
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Index 8 results (showing 5 best matches)
Chapter 4. Price Predation 18 results (showing 5 best matches)
- The Supreme Court’s major price predation decisions in the last three decades have involved private antitrust suits. Of those, the two most recent,
- There are two unsettled issues concerning antitrust’s treatment of predatory buying. The first is a reflection of the debate about predatory pricing. See the discussion in §§ 4.1c–4.1d. One view is that predatory buying, like predatory pricing, is rare. Under this view, the danger of undue restraints on dominant or near dominant firms is substantial, precluding them from procompetitive actions and justifying minimal regulation of buying conduct. The second view is that predation, both predatory pricing and predatory buying, is a major threat to competition, harming consumers, atomistic sellers, and small rival firms that are easily targeted by larger firms that have the resources and strategic options for targeted predation. Under this second view, an aggressive antitrust policy to thwart predatory buying, albeit one that steps carefully to avoid false positives, is warranted.
- An Antitrust Remedy for International Price Predation: Lessons from
- An Antitrust Remedy for International Price Predation: Lessons from
- The Limits of Antitrust
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Table of Cases 27 results (showing 5 best matches)
- Air Passenger Computer Reservations Sys. Antitrust Litig, In re……………143
- Antibiotic Antitrust Actions, In re……………833
- Beef Industry Antitrust Litigation, In re……………808, 822
- Brand Name Prescription Drugs Antitrust Litigation, In re……………34, 342, 344, 657, 835
- Catfish Antitrust Litig., In re……………822
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Title Page 1 result
Half Title 1 result
- Publication Date: October 31st, 2015
- ISBN: 9780314290786
- Subject: Antitrust Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This updated edition of a venerable antitrust law treatise will meet the needs of lawyers, judges, scholars, and students. As in prior editions, it provides a clear statement of the law, visits unresolved issues and areas of controversy, and provides a candid assessment of the strengths and weaknesses of the various positions. The new edition also contains a more user-friendly index.
