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Course: Antitrust Outline Fall 2000
School: unknown
Year: 2000
Professor: unknown
Course Outline provided by Legalnut.com

Antitrust Outline

 

  1. Horizontal agreements

    1. Per se rule

      1. Restraints were for the sole purpose of restraining competition (Adyston Pipe)

      2. Permitted if reasonable, test is whether it regulates or promotes competition – if the effect on competition (Brandeis says that the only competition is pure competition) (CBOT):

        1. Just saying it is reasonable is not a defense (Trenton potteries) -- so, in total they control 82% of the market: question is whether it helps or does not help competition

      3. Topco: agrement amount competitors to allocate territories

      4. Messing up competition: Socony

      5. Old rule of Topco was illegality per se for horizontal territorial divisions

        1. Critisized because they didn't use the rule of reasons

    2. Rule of reason can be gotten to if horizontal restraints are necessary in the first place (whether it promotes competition): (but it seems like you can get into the rule of reason by claiming it)

      1. Efficiencies can be found in blanket licenses (but blanket licenses were not really a restraint)

        1. BMI could be aiding productive or allocative efficiencies

      2. No efficiences in keeping price out marketplace as a a smokescreen for safty (what matters is people competition)

      3. Complex market may function with consumers as well or better, even with agressive limitations on advertising:

        1. Question as to whether price is connected to safty. Dissent was that, in a complex market, truthful claims about price and quality serve to bring dentists together

  2. Can be a difference between conspriacy in restraint of trade and a conspiracy to monopolize

    1. Violation of part does not necessarily imply violation of part number 2

    2. A single firm can to act anti-competiviely (with a parent and subsidiary) so long as it doens't threaten a monopoly

      1. Section 1 requires combination

      2. Section 2 only monopoly action and may include uniltaal behavior

    3. Uniliteral behavior

      1. Copperweld: Parent-subsidiary doesn't count

  3. Horizontal Group Boycott

    1. FOGA: Even per se illegal if there is a tort remedy

    2. Purely vertical agreement with a 3rd party must be addressed under the rule of reason

      1. Not all concerted refusals to deal are predomantly anti-competive

      2. Per-se requires market power, exclusive access to an element, and conclusion that expulsion would have access to an anti-competive effect ('s)

  4. Oligopoply

    1. Inference can be drawn from conscious paralellism and signaling (American Tobacco).

      1. agreement can be inferred from being a part of the spokes of the conspiracy: Interstate

      2. American Tobacco: gave rise to inference of conspiracy

        1. Can be rebutted by legitimate business reasons

    2. Data dissemination to promote oligopoly – might fascilitate collusion

      1. Exchange of information about current or future prices (as opposed to past prices)

      2. Identification of parities, as well as price in sales transaction

        1. Mapel Flooring didn't (even though there was a greater concenatration)

      3. Highly concentrated or oligopolistic market structure with relatively new sellers

      4. American column: were discussing future prices and warning against oligoply

    3. Basis point pricing: Condemend Container Corporation because it reduces incentive to reduce fraight charges

      1. Bpp is really a tacit agreement

      2. Disent: migration into the market, and have to look at the warranties

        1. Have to prove an intent to raise prices

  5. Essential facility refusal to deal

    1. AP: in a non-natural monopoly, consumer welfare can suffer by allowing the organization that holds an essential facility to be a kingmaker

      1. Note: orothodox view is to look in terms of comsumer welfair

    2. If an association has no market power, than rule of reason treatment would be used: Northwest Wholesale

      1. Question: if they did not have market power, it would be rule of reason

    3. Agreements to not provide

      1. Northwest was purely rule of reason

      2. Can be decided under quick look – wherein the defendant can show lack of power or justification: both some maket power, and some justificaiton for it

  6. Vertical agreements – if the deal involves apparant non-competitors, it has to be under the rule of reason

    1. Purely vertical agreemetns not to deal with a 3rd party must be addressed under the rule of reason (NYNEX)

  7. Poltical side

    1. Noerr: concerted efforts to influence government ok

      1. Can influence legislature, courts, or executive

      2. (California) But can't be sham to cover anti-competitive attempt

      3. "objectively baseless and improperly motivated" (Professional Real Estate)

    2. Poltical activity itself cannot be the restraint of trade

    3. Private action in private ordering, and rigging the election – doesn't apply even if a private body has an influence on government standards

    4. Even if genuinely intending to influence, the government, a horizontal boycott has to be for political reasons, not economics

      1. Can be an exception if the political aspects outweight the other issues

  8. Attempting to monopolize

    1. Two requirements in standard oil: but firms can become monopolies through normal industrial methods

      1. Defendant, unless restrained, will obtain a monoply

      2. Conduct must reveal a "specific intent" to acheive a tainted monopoly

        1. Hard to define

        2. Bad conduct or makes no senses, unless predicated on the idea that the alleged pretender will drive everyone from the market

        3. Coercive refusals to deal can constitute monopolization attempt: (e. g. we will do business, if you refuse to do business with competitor)

      3. Dangerous probability: Needs to show either market power, or a common senses substitute. Also needs to show a reasonable amount of market power, or its common senses substitute: Spectrum Sports:

      4. Monopolization is defined as using market power as a monopolist to drive out competition and raise prices (Standard Oil)

      5. Attmempting to monopolize is a drive toward acquiring the market power in being able to monopolize (Standard Oil)

    2. Monopsony power, plus not being a passive beneficiary is being a monopolizers

      1. Griffith: if there is domanance in one geographic area, can't leverage it to dominace over firms in other geographic areas

        1. The possesion of monoply power in the relevatn market

        2. The willful acquisition or maintnece of that power as distinquifed from frowth or developed as a conseuqnce of a superior product, etc.

      2. Leasing is the same 0--- if people can be forced into leases reducing liquidity (United Shoe)

        1. Three approaches

          1. Dominate firm violates Se. 2 when it engaged in unreasonabke restrains under § 1

          2. Has the power, has exercsied it, or has the power to exericse it

          3. One could monopolize when they do business

    3. Three possible tests

      1. Douglas: monopoly plus intention to use

      2. Monopoyl power plus a non-passive beneficiary

      3. White: Monopoyl power plus not honestly industrial practices (Aspen)

    4. Monopolization of a necessity

      1. Significant change in a pattern of distribution that had originated in a competitive market

      2. Apparantly irrational

      3. Court tells to collude

    5. Predatory Pricing: rare

      1. Areeda Test: if price above ATC (Barry Wright)

      2. Is pricing below marginal costs

      3. Plaintiff must show a that the defendant anticipated recoupment through monoply (Brooke Group)

        1. Entry issues

  9. Market definition

    1. A market such a hypothetical monopolist could produce a small, but significant and non-transitory price increase (estimation of responces to price increases)

  10. Exclusionary practice

    1. Right to refuse to deal is not absolute – in the context of monopoly power it is unlawful – if there is already a dominant position in the market: Lorrain Journal

    2. American airlines: exclusionary intent plus dangerous probability

  11. Attempt: need proof of a dangerous probability that they would monopolize (dangerous probably plus specific intent – plus some manifest exclusionary conduct)

  12. Vertical price restraints

    1. RPM: per se illegal (dissent is that producers know what price where it can best do business) if there is an actual agreement (Dr. Miles): But, maximum prices may be under ror. Kahn.

      1. Monsanto

        1. Price

        2. Non-price

          1. In the Monsanto case, decided in 1984, the Supreme Court held if a supplier terminated one dealer in response to a second dealer’s complaint about the first dealer’s prices, the termination could be per se illegal resale price maintenance. However, under Colgate, the terminated dealer must show that there was actually an agreement between the supplier and the second dealer. The mere fact that the second dealer had complained and that the supplier subsequently terminated the first dealer was not sufficient to establish an agreement. Further, it must be shown that the rationale for the termination was the dealer’s price cutting, not its violation of a nonprice restriction.

      2. (Bus Electronics): Has to be actual agreement

    2. Rule of reason for geographic: more competiton can be an excuse for less competition intra-brant (Sylvania) -- vertical geographical constraints are pro-competitive

      1. Colgate: has to be actual agreement (uniltateral "suggested" prices don't count) – can't threaten, warn or intimidate

    3. Non-price restraints are under the reason

  13. Tying: tying arrangements are illegal soft-core per se when the pre-requisites or not

    1. Easy ones are tying worthless product to worthful product

    2. Clayton: needs to be across state line, and only goods

    3. Tying arrangements are illegal per-se under the Sherman act as long as there a not-insubstantial amount of interstate commerce effected

      1. for a Plaintiff to prevail under a per-se analysis has to be a showing that people were "coerced" to buy the tied product or that competitors were placed at a measurable disadvantave

      2. Services Tied to Land: Northern Pacific

      3. Seller has sufficient economic power to appreciably restrain in the tied product market

      4. Supplementary product : International Salt

    4. Repair services are a separate market and defined the market as being a market of only one brand: Kodak

      1. The scheme involves two distinct products and provides that one (the tying product) may not be obtained unless the buyer or lessee takes the second product (the tied product) as well;

        1. Distinct products can be limited to a single brand

      2. The seller possess sufficient market power in the market for the tying product to restrain competition in the market for the tied product;

 

        1. Market power should not be inferred from the fact that a tying product is unique (Fortner)

      1. A "not insubstantial" amount of commerce in the tied product market is affected by the arrangement. Sales of $50,000 to $60,000 have been found to satisfy this requirement.

    1. If you can't prove the three requisites

      1. Lower courts: may be necessary at first to ensure synergy's between equipment

    2. Jefferson Parish was not a tie (needs to have market power)

      1. Low market share (could go to other hospital)

      2. concurrance – consumer welfare

        1. must power in the tying product market

        2. risk that the tied marked will fall prey to the tied agents (very little if stable providers)

        3. must be a cherant economic for treating the tied product as distinct

    3. Standard oil: looks at the amount of the marked "foreclosed" by the tying

      1. Doesn't need to increase (but maintain)

    4. Relevant makets are where they compete, and not where they are located

  1. Vertical Mergers

    1. Brown Shoe: would lead to a monopoly (incipiency argument)

      1. Even if the numbers are small, things can still be inferred

      2. Brown Shoe: The fact that, at a large number of cities, there were maximums as much as 5% on both companies, joining these competitors would probably lessen competition

        1. Where there was a combined share in the merged entity in a particular line of shoes, than the courts felt that this could lessen compeititon

        2. There could be an oligoply situation which congress saught to avoid at hand

        3. There could be a triggering of reactive mergers toward oligopoly

    2. Old rule in Philadephia Bank: Produced a high market share (e. g. over 30% shifts burden)

    3. General Dynamics; non-statistical factors can be used

      1. Failing business excetpion

      2. Changin size of market

      3. Nature of the contracts

    4. 1800 is the threshold +/-100

  2. Conglomerate

    1. Acquiing firm had the necessary means

    2. Existing firms would be influenced

    3. Eliminatino of the acquiring firms would not be significant

    4. Entry

 

 

 

 

 

 

 

 

 

 

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