Federal Antitrust Policy, The Law of Competition and Its Practice
Author:
Hovenkamp, Herbert
Edition:
5th
Copyright Date:
2016
29 chapters
have results for sports law
Chapter 4. Antitrust Policy Toward Collusion and Oligopoly 70 results (showing 5 best matches)
- 538 F.3d 736, 741 (7th Cir. 2008), rev’d, 560 U.S. 183 (2010). The Supreme Court did not cite Chicago Professional Sports Ltd. Partnership v. NBA, 95 F.3d 593 (7th Cir. 1996), which had established the single entity status for a similar professional sports organization in Seventh Circuit law. However, the facts differed, as we discuss later. See 7 Antitrust Law ¶ 1478d3 (3d ed. 2010).
- For a more detailed account, see 6 Antitrust Law ¶ ¶ 1433–1434 (3d ed. 2010); William E. Kovacic, The Identification and Proof of Horizontal Agreements under the Antitrust Laws, 38 Antitrust Bull. 5 (1993).
- See, e.g., Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 124 S.Ct. 872 (2004); and see 3B Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ ¶ 771–774 (4th ed. 2015).
- One reason antitrust law has had so little success with oligopoly is its continued adherence to a common law concept of “agreement” that makes little sense in the context of strategic behavior among competing firms. This agreement requirement frequently targets the wrong set of practices. determined by equating its own marginal cost and marginal revenue on the assumption that other firms will hold their output constant. Adhering to the oligopoly price is profit-maximizing behavior, given the status quo. As a result, nothing resembling a common law contract or conspiracy will be found in the orthodox noncooperative oligopoly.
- Cheating by secret price discrimination has been rampant in many cartels, particularly secret cartels that cannot be enforced by law (such as those within the jurisdiction of the American antitrust laws).
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Chapter 7. Exclusionary Practices in Monopolization and Attempt Cases 100 results (showing 5 best matches)
- Verizon Communications, Inc. v. Law Offices of Curtis v. Trinko, LLP, 540 U.S. 398, 414, 124 S.Ct. 872, 883 n. 4 (2004), citing Spectrum Sports, 506 U.S. at 459, 113 S.Ct. 892.
- Spectrum Sports
- Spectrum Sports
- Spectrum Sports v. McQuillan, 506 U.S. 447, 459, 113 S.Ct. 884, 892 (1993), on remand, 23 F.3d 1531 (9th Cir.1994).
- Illinois Tool Works Inc. v. Independent Ink, Inc. (ITW), 547 U.S. 28, 126 S.Ct. 1281 (2006); and see § 3.9d. See also Spectrum Sports v. McQuillan, 506 U.S. 447, 455, 113 S.Ct. 884, 890 (1993) (dicta; patent cannot be presumed to define a relevant market).
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Chapter 19. Antitrust and Federal Regulatory Policy 57 results (showing 5 best matches)
- 36 U.S.C.A. §§ 371 et seq. See Behagen v. Amateur Basketball Assn., 884 F.2d 524 (10th Cir. 1989), cert. denied, 495 U.S. 918, 110 S.Ct. 1947 (1990) (olympic committee’s determination of amateur status not subject to antitrust laws under Amateur Sports Act).
- Amateur athletic associations receive a partial antitrust exemption through the Amateur Sports Act, when they determine who can claim amateur status. Further, the Sports Broadcasting Act, permits football, baseball, basketball, or hockey leagues to deal for all league members in selling television rights, provided that telecasting is not limited in any city other than “the home territory of a member club of the league on a day when such club is playing a game at home.”
- Chicago Professional Sports Limited Partnership v. NBA, 961 F.2d 667, 670 (7th Cir.), cert. denied, 506 U.S. 954, 113 S.Ct. 409 (1992).
- This chapter is concerned with the relationship between federal antitrust policy and other forms of federal regulation. Then chapter 20 on the “state action” doctrine considers the relation between federal antitrust and the regulatory policies of state and local government. At first glance, the questions raised in these two chapters seem quite different from one another. After all, federal regulation and the federal antitrust laws are passed by the same level of government, and Congress has the authority to repeal, amend or create exceptions to the antitrust laws any time it wishes. By contrast, the relationship between federal statutes and state and local government regulation is which demands that state and local law give way to valid, inconsistent federal law.
- (1) the existence of regulatory authority under the securities law to supervise the activities in question; (2) evidence that the responsible regulatory entities exercise that authority; and (3) a resulting risk that the securities and antitrust laws, if both applicable, would produce conflicting guidance, requirements, duties, privileges, or standards of conduct. We also note (4) that in the possible conflict affected practices that lie squarely within an area of financial market activity that the securities law seeks to regulate.
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Chapter 6. Exclusionary Practices and the Dominant Firm: The Basic Doctrine of Monopolization and Attempt 57 results (showing 5 best matches)
- Spectrum Sports
- Spectrum Sports
- The “dangerous probability” requirement was traditionally controversial. For example, the Ninth Circuit found the requirement unnecessary if the conduct that formed the basis of the attempt claim was also a per se violation of the antitrust laws.
- See Spectrum Sports v. McQuillan, 506 U.S. 447, 458–459, 113 S.Ct. 884, 892 (1993), requiring market definition in an attempt to monopolize case.
- Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S.Ct. 2847 (1985). Likewise, Spectrum Sports v. McQuillan, 506 U.S. 447, 113 S.Ct. 884 (1993), suggests that intent remains important in an attempt case. See § 6.5.
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Chapter 20. Antitrust Federalism and the “State Action” Doctrine 81 results (showing 5 best matches)
- As a basic proposition, application of state antitrust law is constitutional even though the decision has some impact on interstate or even foreign commerce. result, there is considerable overlap in the situations to which state law and federal law apply. The case for a state application of its own antitrust laws to activities affecting interstate commerce is strongest when the state law is modelled after the federal law. If the extraterritorial impact is very large, however, and the state law requirements differ so significantly from federal requirements that federal policy is undermined, then the state law may be struck down. Further, application of state law may be improper if doing so would effectively force inconsistent rules on a nationwide and networked market, such as professional sports.
- E.g., Major League Baseball v. Crist, 331 F.3d 1177 (11th Cir. 2003) (federal baseball exemption extends to state antitrust law as well); Partee v. San Diego Chargers Football Co., 34 Cal.3d 378, 383, 194 Cal.Rptr. 367, 668 P.2d 674, 678 (1983) (en banc), cert. denied, 466 U.S. 904, 104 S.Ct. 1678 (1984) (state antitrust law should not be applied to rules of national sports league where uniform governance was essential). But see Flying J, Inc. v. Hollen, 621 F.3d 658 (7th Cir. 2010) (gasoline statute mandating minimum markups at the pump not preempted by federal antitrust law).
- State and local governments are not free to regulate without any restraint whatsoever. Nevertheless, the mere fact that state law is inconsistent with federal antitrust policy is generally not enough to preempt the state or local law. This is often the case where the state or local law regulates more intensively than federal antitrust law does. For example, upheld a state statute forbidding vertical integration by petroleum refiners into retailing, notwithstanding that federal antitrust law generally permits vertical ownership and regards most of it as efficient. Finally, state antitrust laws that permit indirect purchasers to sue for damages have been upheld, notwithstanding that federal law limits damage recoveries to direct purchasers. ...Supreme Court held that the federal Natural Gas Act did not preclude the application of state antitrust law to alleged price fixing, mainly because the statutory language made clear that Congress had intended to complement rather than... ...law...
- Nearly all the states have antitrust laws, some of which actually antedate the Sherman Act. Indeed, until the Sherman Act was passed competition policy in the United States was governed exclusively by state law, although the original models were based on state corporation laws rather than state laws explicitly concerned with restraints on trade or monopoly. Many, but not all, state antitrust statutes are virtual carbon copies of the Sherman Act. In fact, many state courts hold that federal case law interpreting the federal antitrust laws should be regarded as precedential for that state’s antitrust law.
- Questions concerning the relation between state antitrust policy and federal law implicate the Supremacy Clause relatively more often. The easy case concerns the state law that purports to permit something that federal antitrust prohibits. The great railroad case first established that the fact that a merger was legal and had been approved under the law of a particular state had nothing to do with its legality under federal antitrust law—to that extent, state law was preempted.
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Chapter 21. The Reach of the Federal Antitrust Laws 54 results (showing 5 best matches)
- Not only are the antitrust laws passed under Congress’ power to regulate commerce, but the language of the Sherman and Clayton Acts themselves explicitly reference “commerce.” Not every activity that affects two or more states or United States relations with foreign nations is “commerce.” Justice Holmes concluded that professional baseball was not “commerce”—a conclusion that anyone familiar with professional sports today finds difficult to appreciate. But the so-called “baseball exemption” from the antitrust laws has stuck against repeated challenges, notwithstanding the lack of any real world verisimilitude.
- This section is concerned with the power of the federal courts to use the federal antitrust laws to reach activities that occur abroad, that contain a measure of foreign government involvement, or that raise actual or potential conflicts with the law of a foreign sovereign. , American antitrust policy is more aggressive than the policy of many other countries, often condemning activities that other sovereigns regard as legal. That aggressiveness also applies to its system of remedies; in other countries treble damages are virtually unheard of and United States law is far more tolerant of private actions. , where antitrust is concerned, American enforcers and courts have been quite willing to assert American authority over activities occurring abroad, and not particularly accommodating of the conflicting policies of foreign nations. As a result, scholars of conflict of laws and international law sometimes find American application of its law to activities abroad excessive and perhaps...
- The Act follows earlier case law in not requiring a Further, the FTAIA expressly references the federal antitrust laws by the term “this title,” referring to 15 U.S.C., and thus does not limit the extraterritorial reach of state antitrust law. At least one decision has held that state antitrust law can be applied to conduct that occurs abroad if it causes injury within that state.
- In this case the first sale was to a foreign subsidiary of Motorola that could sue the price fixers under the law of the country of which the subsidiary was a citizen, or the law of the countries of which the price fixers were citizens (or a country of which a particular price fixer that the subsidiary decided to sue was a citizen). Motorola, the American parent, the harm to which from the price fixing would be so difficult to estimate, could not sue under federal antitrust law.
- Goldfarb v. Virginia State Bar, 421 U.S. 773, 786–787, 95 S.Ct. 2004 (1975). For a full discussion of the case law, see 1B Antitrust Law ¶ 261 (4th ed. 2013).
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Table of Cases 8 results (showing 5 best matches)
- Chicago Professional Sports Ltd. Partnership v. National Basketball Ass’n.....................................248, 299, 965
- Christy Sports, LLC v. Deer Valley Resort Co..........................................................429
- Orthopedic & Sports Injury Clinic v. Wang Labs......................................................858
- Spectrum Sports v. McQuillan.....107, 165, 360, 427, 472, 552
- Trans Sport v. Starter Sportswear...................................629, 652
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Chapter 8. Predatory and Other Exclusionary Pricing 43 results (showing 5 best matches)
- Spectrum Sports v. McQuillan, 506 U.S. 447, 459, 113 S.Ct. 884, 892 (1993), on remand, 23 F.3d 1531 (9th Cir.1994). See § 6.5b.
- Even an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws; those laws do not create a federal law of unfair competition or “purport to afford remedies for all torts committed by or against persons engaged in interstate commerce.”
- One objection to this focus on structure is that if the goal of antitrust law is deterrence, then the law should look at conduct rather than results. Refusing to find predatory pricing in competitive markets sounds a little like failing to find attempts generally. The common law offense of “attempt,” after all, is directed toward thought the gun would work, and if we want to deter murders, that should be the thing that counts. So, the argument goes, if the goal of antitrust law is deterrence, then we want to deter people from attempting antitrust violations, even those where the likelihood of success is small. Indeed, the attempt itself can be socially costly. Failed predation has been described as a “gift” to consumers, because it produces low prices today and no subsequent monopoly prices later.
- , which are economies that result from a firm’s ability to do two things at once. It should not be the policy of the antitrust laws to prevent firms from adding products when the incremental cost of their doing so is less a major airlines was accused of predatory pricing in its cut rate, or “supersaver” fares. However, the airline’s overall fare structure was profitable and the alternative to supersaver fares would have been empty seats, which produced no revenue at all. If an airline can fill an additional seat on an already scheduled airline for $100, the antitrust laws should not prevent it from doing so, provided that the
- Importantly for the law of predatory pricing, the Robinson-Patman test is more aggressive than the Sherman Act test. As a result, most of the limitations the Court placed on predatory pricing claims brought under the Robinson-Patman Act apply
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Chapter 3. Market Power and Market Definition 48 results (showing 5 best matches)
- Spectrum Sports v. McQuillan, 506 U.S. 447, 458–459, 113 S.Ct. 884, 892 (1993), remanded, 23 F.3d 1531 (9th Cir.1994). See § 6.5.
- Spectrum Sports v. McQuillan, 506 U.S. 447, 455–6, 113 S.Ct. 884, 892 (1993), remanded, 23 F.3d 1531 (9th Cir.1994); Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 100 (2d Cir.1998). When predatory pricing is challenged as a so-called “primary line” violation of the Robinson-Patman Act, 15 U.S.C.A. § 13, a relevant market must be defined as well. See § 8.8.
- televised NCAA football games was sufficiently differentiated from the television audience for other sporting events. Indeed, advertisers were willing to pay a premium for spots on college football games. As a result, televised college football was a relevant market.
- Spectrum Sports
- See 2A Antitrust Law ¶ 519 (4th ed. 2014). Important seminal pieces are Benjamin Klein & Lester F. Saft, The Law and Economics of Franchise Tying Contracts, 28 J.L. & Econ. 345 (1985); Paul H. Rubin, The Theory of the Firm and the Structure of the Franchise Contract, 21 J.L. & Econ. 223 (1978).
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Chapter 5. Joint Ventures of Competitors, Concerted Refusals, Patent Licensing, and the Rule of Reason 141 results (showing 5 best matches)
- Limitations on joint venture membership are generally thought necessary to keep the transaction costs of operating the venture manageable. It is one thing for two firms to join together to manufacture a product; it is quite another for twenty firms to do so, particularly if they have unique interests. Then the costs of negotiating product design, settling on the appropriate size plant, its location, and so on, can become quite unmanageable. Or in a different context, a sports league of ten or even twenty teams might readily manage a season schedule and conduct playoffs to pick a champion. But management would become far more difficult if the league had 1000 members or even ...all sports leagues have rules that limit the number of teams that can participate or place stringent limitations on new entry. As we shall see later, these problems are more significant in some joint ventures than others, and many ventures become more profitable as their membership increases. Such ventures...
- See also California v. Safeway, Inc., 615 F.3d 1171 (9th Cir. 2010), aff’d en banc, 651 F.3d 1118 (2011) (applying quick look to agreement to share profits during pendency of labor dispute); In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300 (3d Cir. 2010) (insurer agreement not to compete for renewals either per se unlawful or subject to a quick look). Cf. Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820 (3d Cir. 2010), cert. denied, 131 S.Ct. 658 (2010) (full rule of reason had to be applied to tennis association’s reorganization of its tour so as to upgrade certain players but downgrade the plaintiffs; purpose of reorganization was to make the tennis tour more popular vis-à-vis other sports). See Gregory J. Werden, Next Steps in the Evolution of Antitrust Law: What to Expect from the Roberts Court, 5 J. Comp. L. & Econ. 49 (2009).
- See, e.g., Chicago Professional Sports Limited Partnership & WGN v. National Basketball Assn., 961 F.2d 667, 675 (7th Cir.), cert. denied, 506 U.S. 954, 113 S.Ct. 409 (1992) (NBA could capture value of its name and other intellectual property by charging a fee when its games were televised). Cf. United States v. Associated Press, 52 F.Supp. 362, 365 (S.D.N.Y.1943), affirmed, 326 U.S. 1, 65 S.Ct. 1416 (1945) (use of new member entry fees to compensate existing members for previous investments); General Leaseways v. National Truck Leasing Assn., 744 F.2d 588 (7th Cir.1984) (rejecting free rider claims involving members’ repairs of each other’s trucks when they charged for the service).
- See generally, Symposium on Antitrust and Health Care, 51 L. & Contemp. Prob. 1 (1988); for the historical development, see Paul Starr, The Social Transformation of American Medicine 164–169 (1982). Similar problems have arisen in professional sports. For example, see Weight-Rite Golf Corp. v. United States Golf Assn., 766 F.Supp. 1104 (M.D.Fla.1991), affirmed mem., 953 F.2d 651 (11th Cir.1992) (rejecting challenge by manufacturer whose golf shoes were disapproved by golfers association); Eleven Line v. North Texas State Soccer Assn., 1998 WL 574893 (N.D.Tex.1998), reversed, 213 F.3d 198 (5th Cir. 2000) (refusing to condemn dominant indoor soccer league’s attempt to disqualify stadiums of competing soccer league).
- As a result, the antitrust laws and the federal intellectual property laws must be interpreted so as to accommodate one another. Importantly, the United States has both a patent policy and an antitrust policy, and neither should be interpreted in such a way as to disregard the other. One may therefore dispute the conclusion that if a “patent has been lawfully acquired, subsequent conduct permissible under the patent laws cannot trigger any liability under the antitrust laws.” Simple legality under the patent laws cannot be decisive of an antitrust question, although under the patent laws generally is decisive.
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Chapter 12. Mergers of Competitors 79 results (showing 5 best matches)
- Measuring diversion ratios empirically can be a fairly manageable problem, particularly in markets where there are electronic records of transactions. For example, if a sporting goods store sells several brands of running shoes and the price of Adidas rises by 10%, scanner data might reveal the number of customers who switched away from Adidas, and the relative numbers that switched to Nike, Saucony, Asics, and so on.
- The word “merger” has a broader meaning in federal antitrust law than in state corporation law. In many cases a “merger” for antitrust purposes is merely the purchase by one firm of some or all of the assets of another firm. A merger of corporations also occurs when one corporation buys some or all of another corporation’s shares. The antitrust laws also use the word “merger” to describe a consolidation: two original corporations cease to exist and a new corporation is formed that owns the assets of the two former corporations.
- See J.D. Cox & T.L. Hazen, Corporations, ch. 22 (2d ed. 2003); R. C. Clark, Corporate Law 401–498 (1986). However, see California v. American Stores Co., 872 F.2d 837, 845 (9th Cir.), affirmed on other grounds, 495 U.S. 271, 110 S.Ct. 1853 (1990) (state corporate law should be used to determine when an acquisition had occurred.
- Supporting condemnation of mergers in markets exhibiting a trend toward concentration: Derek Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226, 310 (1960); opposing it: Robert H. Bork, The Antitrust Paradox: A Policy at War With Itself 205–206 (1978). Other literature is discussed in 4 Antitrust Law ¶ 932e (4th ed. 2016).
- This chapter integrates the discussion of case law, Guidelines and fundamental economic theory in a way that indicates the importance and appropriate domain of each. Importantly, federal merger policy is still governed by the statute and judicial law interpreting it. The Merger Guidelines are only Guidelines and they are not binding on courts. Nonetheless, over the years the courts have paid close attention to the Guidelines, generally giving the government the benefit of the doubt.
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Chapter 1. The Basic Economics of Antitrust 61 results (showing 5 best matches)
- The notion that a single firm wins a competitive bid is commonplace. If the city of San Francisco decides to build a sports arena, the “market” for the construction of the arena is probably a natural monopoly—the city would prefer to have a single contractor take charge of the entire project. The city will identify the contractor and the price of the project by taking competitive bids, with the offer generally going to the lowest qualified bidder. Although a single firm ends up building the arena, the process of competitive bidding helps ensure that the firm will not charge a monopoly price.
- For a thorough, readable study of the law and economics of monopsony, see Roger D. Blair & Jeffrey L. Harrison, Monopsony: Antitrust Law & Economics (2d. 2010). On the law and economics of buying cartels, see 12 Antitrust Law ¶¶ 2010–2015 (3d ed. 2012).
- Antitrust law’s concern with this of monopolization, rather than merely with the outcome, is quite apparent from the statutory scheme. The law of monopolization requires not only a monopoly position, but also the commission of one or more anticompetitive “exclusionary practices,” thus signaling that the process by which monopoly is to be created determines its legality. We condemn collusion, attempts and conspiracies to monopolize, tying arrangements, exclusive dealing, mergers and other practices only because we believe that these tend to facilitate the creation of monopoly. We may sometimes be wrong about our underlying facts or even about the economic theories we employ, but the basic premise remains the same: the principal target of the antitrust laws is not static monopoly as such, but rather the manifold mechanisms by which monopoly is created or preserved. Indeed, there is no law of “no fault” monopoly; the innocent monopolist does not violate the antitrust laws simply by...
- See Herbert Hovenkamp, Enterprise and American Law, 1836–1937 at chs. 22–25 (1991). On the postwar period, see Herbert Hovenkamp, The Opening of American Law: Neoclassical Legal Thought, 1870–1970, chs. 11–12 (2015). See also Herbert Hovenkamp, The Law of Vertical Integration and the Business Firm: 1880–1960, 95 Iowa L.Rev. 863 (2010); Herbert Hovenkamp, United States Competition Policy in Crisis, 1890–1955, 94 Minn.L.Rev. 311 (2009).
- See 11 Herbert Hovenkamp, Antitrust Law ¶ 1807 (3d ed. 2011); Bruce H. Kobayashi, The Economics of Loyalty Discounts and Antitrust Law in the United States, 1 Competition Pol’y Int’l 115 (2005).
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Chapter 10. Tie-Ins, Reciprocity, Exclusive Dealing and Most Favored Nation Agreements 84 results (showing 5 best matches)
- was overruled on other grounds by Spectrum Sports v. McQuillan, 506 U.S. 447, 113 S.Ct. 884, 892 (1993). See § 6.5.
- Why then a law of tying arrangements? Quite simply, some forced package sales have been perceived by both Congress and the courts as causing competitive injury to the seller’s customers or competitors. The law of tie-ins is concerned with identifying those forced combined sales that can credibly injure competition.
- exception to the federal antitrust laws (perhaps there is such an exception, but it is not unique to tying arrangements). To the extent that tying law is concerned with limits on competition facilitated by foreclosure or increased collusion, of a relevant market foreclosed by the arrangement. The “quantitative substantiality” rule that tying law uses states a minimum dollar amount which generally does not vary with
- In antitrust analysis, common law requirements contracts are generally treated as exclusive dealing. For example, Taggart v. Rutledge, 657 F.Supp. 1420, 1443–1445 (D.Mont.1987), affirmed mem., 852 F.2d 1290 (9th Cir.1988). contracts, by contrast, are often treated in antitrust law as exclusive dealerships—or promises by the supplier that its entire output in that area will be sold through a single dealer. See § 11.6d; and see 11 Antitrust Law ¶ 1802 (requirements contracts and exclusive dealing); ¶ 1803 (output contracts) (3d ed. 2011). See also Paddock Pub. v. Chicago Tribune Co., 103 F.3d 42, 47 (7th Cir.1996), cert. denied, 520 U.S. 1265, 117 S.Ct. 2435 (1997) (distinguishing output contract from requirements contract).
- Justice Clark’s distinction made little sense in either law or economics, and it raised two unfortunate possibilities: 1) that some tie-ins could be found illegal even though the seller had no market power in the tying product market; 2) that if a seller had market power, its tie may be illegal : that is, evidence about the actual pro-competitive or efficiency effects of a particular arrangement would be irrelevant. Fortunately, subsequent case law has softened both of these rules.
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Chapter 11. Intrabrand Restraints on Distribution 48 results (showing 5 best matches)
- O.S.C. v. Apple Computer, 792 F.2d 1464, 1467–1468 (9th Cir.1986); accord H.L. Hayden Co. of N.Y. v. Siemens Medical Sys., 879 F.2d 1005, 1014 (2d Cir.1989); Parkway Gallery Furniture v. Kittinger/Pennsylvania House Group, 878 F.2d 801 (4th Cir.1989); Trans Sport v. Starter Sportswear, 964 F.2d 186 (2d Cir.1992) (supplier’s policy against permitting sales from one dealer to another supported by valid business reasons, such as a concern about dealer free-riding and counterfeiting).
- For example, Trans Sport v. Starter Sportswear, 964 F.2d 186 (2d Cir.1992) (supplier’s policy against transshipping—sales from one dealer to another—was not shown to be anticompetitive and seemed supported by valid business reasons, such as a concern about dealer free-riding and counterfeiting); Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1570–1571 (11th Cir.1991) (restrictions operated to lower dealers’ costs by creating scale economies);
- decision followed the traditional common law rule that agreements in restraint of trade, although not affirmatively illegal, were unenforceable among the parties. Indeed, the court made only two brief references to the Sherman Act, and then only to observe that its meaning and that of the common law were probably the same.
- Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061 (1977). On state antitrust laws deviating from , see § 20.8; and 14 Antitrust Law, Ch. 24 (3d ed. 2012).
- decision denying damages actions to indirect purchasers, which provoked many state law deviations. Whether such statutes survive preemption or Constitutional challenge very likely depends on the extent to which the state statute purports to reach extraterritorial conduct or conduct that has no economic effect within the state, as well as the extent to which it might discriminate against interstate commerce. Ordinarily, state antitrust law is not preempted by federal law simply because it is different.
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Chapter 16. Private Enforcement 100 results (showing 5 best matches)
- See 2 Antitrust Law ¶ 307 (4th ed. 2014). See, e.g., Marucci Sports, LLC v. NCAA, 751 F.3d 868 (5th Cir. 2014) (complaint that NCAA and a high school athletic association agreed on standards for metal baseball bats to prevent them from being to “hot” did not sufficiently allege a conspiracy to behave anticompetitively vis-a-vis the plaintiff, a bat manufacturer); Tamburo v. Dworkin, 2010–1 Trade Cas. ¶ 76963 (7th Cir. 2010) (
- Orthopedic & Sports Injury Clinic v. Wang Labs., 922 F.2d 220, 224 (5th Cir.1991), citing and quoting previous Fifth Circuit decisions. Accord Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir.1985) (nonantitrust case) (“a party may not avoid summary judgment solely on the basis of an expert’s opinion that fails to provide specific facts from the record to support its conclusory allegations”). See also Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 253 (D.C. Cir. 2013) (expert’s methodology could not distinguish between class members who purchased during cartel period and those that purchased earlier; as a result it awarded damages to some members who were not victims of an antitrust conspiracy).
- Importantly, the existence of a state statute in no way limits or controls damage measurement under federal law. That is, the state statute cannot mandate that the damages be “allocated,” for that would reduce the direct purchaser’s federal right. Thus a direct purchaser proceeding under federal law will be entitled to treble the entire monopoly overcharge, while the indirect purchaser proceeding under state law will be entitled to treble the overcharge that was passed on to it. At the margin, this regime could produce six-fold rather than treble damages. Further, the damages could be awarded in a single federal proceeding. For example, direct purchasers could sue for damages under federal law while indirect purchasers sued for an injunction under federal law (one of the exceptions) and attached a pendant state law claim for damages.
- Some decision must be made about the amount of antitrust enforcement that the law should permit. If the exclusive purpose of the antitrust laws is to maximize the efficiency of the market system of allocating resources, the optimal level of enforcement will leave the largest amount of social wealth intact after all costs of violations, enforcement and penalties are paid.
- In denying recovery, the Supreme Court observed that many antitrust violations could cause “losses which are of no concern to the antitrust laws.” In order to recover, a plaintiff must show not only that an antitrust law has been violated and the plaintiff injured. It must also show “ injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” Such an injury should “reflect the anticompetitive effect * * * of the violation * * *.” Today “antitrust injury” has been established as a requirement for private actions under virtually all of the antitrust laws. It has become an essential element of private plaintiff standing.
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Chapter 18. Antitrust and the Process of Democratic Government 40 results (showing 5 best matches)
- In sum, laws specifically designed to address corruption of political markets, such as laws against bribery, conflict of interest laws, or laws regulating or limiting the spoils system, are the appropriate vehicles for challenging governmentally produced anticompetitive results. But the domain of antitrust is
- A few courts have written as if “sham” petitioning were in and of itself an antitrust offense. It is not. If it were, then every common law or statutory abuse of process would violate the antitrust laws.
- protected cigarette companies in their petition for master cigarette settlement agreement even if it resulted in supracompetitive price increases); Massachusetts School of Law at Andover v. ABA, 107 F.3d 1026 (3d Cir.), cert. denied, 522 U.S. 907, 118 S.Ct. 264 (1997) ( protected ABA’s petition to states to adopt its law school accreditation standards even though the injury of the plaintiff unaccredited law school was of two types: (1) under the resultant state law, graduates from unaccredited law schools could not take bar exam; and (2) the declaration that a law school was not accredited operated of its own force as a stigma in the marketplace). See FTC Staff Report, Enforcement Perspectives on the Noerr-Pennington Doctrine (2006), available on the FTC’s website at https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-report-concerning-enforcement-perspectives-noerr-pennington-doctrine/p013518enfperspectnoerr-penningtondoctrine.pdf.
- laws to get the job done. The antitrust laws are concerned about the regulation of economic, or private, markets. Regulatory capture occurs in the political market, and the two markets are much more different than they are similar.
- been different, and if the victim can later establish these facts, then there will usually be a remedy under the laws of perjury, abuse of process, libel or slander, and the like. As a general matter, regulation of the judicial process ought to be left to the laws and rules designed to control those processes, not to the antitrust laws.
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Chapter 2. History and Ideology in Antitrust Policy 90 results (showing 5 best matches)
- One solution to the problem of ambiguous statutory language and legislative history is to assume that antitrust violations are a kind of “common law” offense, where judicial precedent defines the substance of the legal rules to be applied. Most of the practices challenged under the Sherman Act had previously been addressed under common law rules. The framers of the Sherman Act believed that they were simply “federalizing” the common law of trade restraints, making the common law more effective by creating a forum with jurisdiction over monopolies or cartels that operated in more than a single state. The earliest Sherman Act decisions construed the statute in that way: they generally decided cases by reference to common law precedents.
- But the fact that the Sherman Act authorized a common law approach to antitrust analysis in no way entails that courts interpreting the Sherman Act would be tied to state court judicial precedents of the nineteenth century and earlier. The record is quite to the contrary. Only the earliest Sherman Act decisions paid very much attention to actual common law decisions, and federal courts very quickly deviated from the common law as it existed when the Sherman Act was passed. Thus the “common law” approach of the federal antitrust laws refers to a precedent-oriented manner of interpretation, not a set of substantive doctrines.
- opinion was to fuse the emerging economic model of competition with the traditional legal doctrine of combinations in restraint of trade. In the process Judge Taft created the illusion that the law of combinations in restraint of trade had always been concerned with competition as defined in neoclassical economics. The result was a Sherman Act whose ideology was much more economic than that reflected in either the common law or the Congressional history. Congress’ own notion that the Sherman Act simply federalized the common law cut the courts free from the Act’s legislative history, but Taft’s decision effectively freed the courts from the substance of the historical common law. From that point on, federal courts forged their own set of antitrust rules through an essentially common law process in which only Sherman (and later Clayton) Act precedents counted. Common law precedents were mainly, although not entirely, ignored.
- See 4 Antitrust Law ¶¶ 901–904 (4th ed. 2016); Derek C. Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226 (1960); Herbert Hovenkamp, Derek Bok and the Merger of Law and Economics, 21 J. L. Reform 515 (1988). See § 12.2.
- The classic, highly factual account is Hans B. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (1955). A few of the others are Rudolph J.R. Peritz, Competition Policy in America, 1888–1992: History, Rhetoric, Law (1996); William Letwin, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (1981); Martin J. Sklar, The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, the Law, and Politics (1988); Herbert Hovenkamp, Enterprise and American Law: 1836–1937 (1991); Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America, 1880–1990 (1992); Herbert Hovenkamp, The Opening of American Law: Neoclassical Legal Thought, 1870–1970, chs. 11–12 (2015). The legislative history of the antitrust laws is collected in Earl W. Kintner, The Legislative History of the Antitrust Laws (1978).
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Chapter 15. Public Enforcement of the Federal Antitrust Laws 29 results (showing 5 best matches)
- There are two views about the wisdom of the FTC’s use of § 5 to go beyond the substance of the antitrust laws generally. One view looks to the substance of those laws, with their central concern for competition. If the case law under the antitrust laws defines our concerns for competition correctly, then it is wrong for the FTC to go further. In effect, it would turn antitrust into the regulation of “unfair” rather than anticompetitive trade practices. This suggests that the decisions noted above, condemning tying and exclusive dealing without any showing of harm to competition, are incorrect.
- See also 14 Antitrust Law, Ch. 24 (3d ed. 2012), which surveys and updates state antitrust law and compares it with federal law; ABA Antitrust Section, State Antitrust Practice and Statutes (4th ed. 2009); Herbert Hovenkamp, State Antitrust in the Federal Scheme, 58 Ind. L.J. 375 (1983); ABA Antitrust Section, Monograph No. 15, Antitrust Federalism: the Role of State Law (1988).
- Violations of the Sherman Act may be prosecuted as civil or criminal offenses. Conduct that the Department prosecutes criminally is limited to traditional per se offenses of the law, which typically involve price-fixing, customer allocation, bid-rigging or other cartel activities that would also be violations of the law in many countries.
- In addition to the public agencies, states’ attorneys general have authority to enforce the federal antitrust laws. The states are considered private persons when they seek enforcement of the federal antitrust laws, however. As a result, they act in a dual role. Insofar as the relationship between the state attorneys general and federal law is concerned, the states are simply a special case of the private plaintiff, and most of the restrictions on private enforcement apply to them.
- Finally, of course, the states’ attorneys general are heavily involved in enforcing the antitrust laws of their particular states, most of which are similar to federal antitrust law. These statutes are generally beyond the scope of this volume, but a brief discussion focusing on issues of federalism is contained in § 20.8.
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Chapter 14. Price Discrimination and the Robinson-Patman Act 36 results (showing 5 best matches)
- Secondly, while the Robinson-Patman Act is quite hostile toward economic competition, it is nevertheless disguised as an antitrust law. Furthermore, its inconsistencies with the other antitrust laws are so substantial that businesses have often complained that they can comply with the Robinson-Patman Act only by violating the other antitrust laws, or vice-versa. The Supreme Court has responded by trying to interpret the Act so as to make it consistent with the other antitrust laws.
- Even this scheme would not be perfect first degree price discrimination, however. It would pick up the value that accrues to customers by virtue of the number of pages they print, but not the value that customers place on individual pages. Consider the law firm and the handbill printer who use the same printer and both print 4000 pages per week. They pay exactly the same price per page of printing. However, the law firm is printing public offerings, prospectus and other legal documents representing hundreds of dollars in legal work per page, while the handbill printer is printing garage sale notices. The law firm would pay $10.00 per page if it had to, while the garage sell printer cannot pay more than 10 cents. The variable proportion tie picks up differences in valuation that relate to the
- The Bill originally proposed was entitled the “Wholesale Grocers’ Protection Act.” See Hugh C. Hansen, Robinson-Patman Law: A Review and Analysis, 51 Fordham L.Rev. 1113, 1123 (1983); see also Herbert Hovenkamp, The Opening of American Law: Neoclassical Legal Thought, 1870–1970, ch. 12 (2015); Federal Trade Commission, Final Report on the Chain-Store Investigation, S. Doc., No. 4, 74th Cong., 1st Sess. (1935). For a more detailed account of the statute and its legislative history see Frederic M. Rowe, Price Discrimination Under the Robinson-Patman Act (1962); and 14 Antitrust Law ¶ 2302 (3d ed. 2012).
- Interbrand competition, our opinions affirm, is the “primary concern of antitrust law. The Robinson-Patman Act signals no large departure from that main concern. Even if the Act’s text could be construed in the manner urged by Reeder and embraced by the Court of Appeals, we would resist interpretation geared more to the protection of existing . In the case before us, there is no evidence that any favored purchaser possesses market power, the allegedly favored purchasers are dealers with little resemblance to large independent department stores or chain operations, and the supplier’s selective price discounting fosters competition among suppliers of different brands. By declining to extend Robinson-Patman’s governance to such cases, we continue to construe the Act consistently with broader policies of the antitrust laws.”
- case further illustrates the anticompetitive potential of the Robinson-Patman Act. A great deal of law under § 1 of the Sherman Act forbids price information exchanges among competitors, if the exchange influences price. the defendants presented what appeared to be a bona fide defense: in order to comply with the “meeting competition” defense of the Robinson-Patman Act, they were obliged to verify that a competitor had in fact given a lower bid to a particular customer. In short, compliance with the Robinson-Patman Act required violation of the Sherman Act. The Supreme Court, concluding that the Robinson-Patman Act must be harmonized with the policies of the other antitrust laws,
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Chapter 13. Conglomerate Mergers 19 results (showing 5 best matches)
- For some insights into the two meanings of “competition” see Donald Dewey, Monopoly in Economics and Law (1959); Edward S. Mason, Monopoly in Law and Economics, 47 Yale L.J. 34 (1937); and see Herbert Hovenkamp, Book Review, 33 Hastings L.J. 755, 762 (1982).
- Potential competition doctrines have greater vitality in European competition law. See Jeffrey Church, Conglomerate Mergers, 2 Issues in Competition Law and Policy 1503 (ABA Section of Antitrust Law 2008); Damien J. Neven, Analysis of Conglomerate Effects in EU Merger Control, in Handbook of Antitrust Economics 183 (Paolo Buccirossi ed., 2008); Jeremy Grant & Damien J. Neven, The Attempted merger Between General Electric and Honeywell: A Case Study of Transatlantic Conflict, 1 J. Competition L. & Econ. 595 (2005).
- Rather, antitrust law searches for ways to identify those mergers that threaten competition. These are condemned, even though they may produce significant economies. Mergers that are unlikely to increase the market power of the post-merger firm and that will probably not facilitate collusion, oligopoly behavior or inefficient exclusionary practices are generally left alone.
- (rather than actual) competition between the merging firms. Most of the case law condemning product extension and market extension mergers relies on this rationale, which is discussed below in § 13.4.
- On reciprocity, see § 10.7; and 10 Antitrust Law ¶¶ 1775–1779 (3d ed. 2011).
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Table of Contents 12 results (showing 5 best matches)
Advisory Board 9 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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Chapter 9. Vertical Integration and Vertical Mergers 33 results (showing 5 best matches)
- See Volker Nocke & Lucy White, Do Vertical Mergers Facilitate Upstream Collusion?, 97 AM. ECON. REV. 1321 (2007); Jeffrey Church, Vertical Mergers, in 2 Issues in Competition Law and Policy 1455, 1489–1490 (ABA Section of Antitrust Law 2008).
- This theory was first suggested by Areeda and Turner in 1980, who noted that no reported cases have relied on it. 4 Phillip Areeda & Donald Turner, Antitrust Law ¶ 1008 (1980). The current version is at 4A Antitrust Law ¶ 1011 (4th ed. 2016).
- On the law of vertical integration by the monopolist, see § 7.6. On the historical development of both the doctrine and the underlying economics, see Herbert Hovenkamp, Enterprise and American Law: 1836–1937, ch. 25 (1991); Herbert Hovenkamp, The Law of Vertical Integration and the Business Firm: 1880–1960, 95 Iowa L. Rev. 863 (2010). For an example of traditional hostility toward vertical integration, see Corwin D. Edwards, Vertical Integration and the Monopoly Problem, 17 J. Marketing 404 (1953). On the refusal of the Supreme Court to accept all of the implications of more benign attitudes toward vertical integration, see William H. Page, Legal Realism and the Shaping of Modern Antitrust, 44 Emory L.J. 1 (1995).
- Notwithstanding extraordinary potential for creating efficiency and limited threat of economic harm, vertical mergers historically did not fare well under the antitrust laws. Most of the law of vertical mergers was written at a time when protection of small businesses rather than encouragement of efficiency was the underlying antitrust policy.
- The literature on this subject is large and good. In addition to other works of Oliver Williamson cited throughout this chapter, see Oliver E. Williamson, Transaction-Cost Economics: the Governance of Contractual Relations, 22 J.L.Econ. 233 (1979); Ian MacNeil, Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical, and Relational Contract Law, 72 Nw.U.L.Rev. 854 (1978); Dennis Carlton, Vertical Integration in Competitive Markets Under Uncertainty, 27 J.Indus. Econ. 189 (1979). On the rise of “neoclassical” and later “relational” contracting, see Herbert Hovenkamp, The Opening of American Law: Neoclassical Legal Thought, 1870–1970 (2015) at 124–129; Herbert Hovenkamp, The Law of Vertical Integration and the Business Firm: 1880–1960, 95 Iowa L.Rev. 863 (2010).
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Preface 4 results
- Federal Antitrust Policy: the Law of Competition and its Practice
- Law school antitrust curricula vary considerably, with some classes focusing only on questions of substance, some involving many questions of enforcement and procedure, and some being quite creative in their application of economics. I have tried to accommodate all of these to one degree or another. I have also attempted to provide a level of detail and analysis that makes this book a useful resource for the practitioner, judge or other antitrust scholar.
- I chose the word “policy” for the title, since this book attempts both to state the “black letter” law and to present policy arguments for alternatives. Although I frequently disagree with court decisions, in all cases I have tried to state clearly what the legal rule is, and then give the reasons for my disagreement. Of course, I have my own ideological views. But here I have tried to present alternative views fairly, and to uncover the premises upon which they rely.
- This book seeks to give a full, although brief, accounting of United States antitrust law. Today the union of antitrust and economics is so complete that one cannot study antitrust seriously without at least minimal exposure to economics.
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Chapter 17. Damages 45 results (showing 5 best matches)
- For the history of marginal deterrence in the American common law tradition, see Herbert Hovenkamp, The Opening of American Law: Neoclassical Legal Thought, 1870–1970 (2015).
- The same thing generally applies to punishment costs. Too expansive a law of damages will encourage too many private plaintiff filings, give plaintiffs an incentive to litigate longer, and to hold out for higher settlements. The result will be increased costs of the second type. At the same time, an overexpansive law of damages and the excessive filings caused thereby will dissuade firms from engaging in competitive practices calculated to injure competitors but which might later be characterized as antitrust violations. This will also increase costs of the first type. The greater the room for misinterpretation, or the greater the uncertainty about the law, the greater these social costs become.
- Contribution is the right of one guilty defendant to force other participants in the same offense to pay a share of the damages award. Many states have adopted contribution rules for tort law, either by statute or by common law rule. In Texas Industries, Inc. v. Radcliff Materials, Inc., however, the Supreme Court decided that neither the antitrust statutes nor the federal common law implied a right to contribution in federal antitrust cases.
- Certain complexities in the law of damages limit the contribution of theoretical economics. The economics revolution in antitrust has been concerned chiefly with the “quality” of antitrust injury. It has helped policy makers determine when certain practices, such as vertical integration, are beneficial to society and when they are harmful; or alternatively, whether the plaintiff is complaining about anticompetitiveness or efficiency. But the law of damages has the much more difficult task of
- Most of the law continues to be based on concepts of justice and compensation that are inconsistent with any notion that the purpose of antitrust enforcement (including private enforcement) is to deter conduct only to the extent that it is inefficient. But the economics revolution in the substantive law of antitrust cannot be ignored in the law of damages, or nearly everything given by one hand will be taken back by the other. The availability and amount of damages determines the amount of antitrust enforcement that exists. More importantly, it affects the cost-benefit calculus any firm undertakes when it considers whether to undertake a risky, probably efficient practice whose legality is uncertain and which is likely to injure certain competitors. The great majority of antitrust cases are filed by private plaintiffs,
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Title Page 2 results
Summary of Contents 2 results
- Publication Date: November 2nd, 2015
- ISBN: 9780314290366
- Subject: Antitrust Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: Nearly all of the aspects of federal antitrust policy are covered in this treatise. And it’s written so you don’t need a background in economics to understand it. Expert narration states the “black letter” law and presents policy arguments for alternatives. Text also includes an analysis of recent Supreme Court and lower-court decisions.
