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Antitrust Today

A Weakened Firm Defense Can Be Strong If The Competitive Threat Is Weak

Posted  07/7/09
Just how weak does a company have to be to rely on a weakened firm defense in a merger analysis?  While the case law is sparse, courts have found such a defense compelling when one of the parties to a merger has been too weak to be a competitive threat. In United States v. General Dynamics Corp., 415 U.S. 486 (1974), the Supreme Court approved a merger between coal producers...

Supreme Court: Resale Price Maintenance No Longer Per Se Illegal; States: Not So Fast

Posted  06/26/09
The Supreme Court’s 2007 decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, overruled the per se rule applying to resale price maintenance and replaced it with a rule of reason analysis.  Nevertheless, 13 states still forbid resale price maintenance, and the adherence of another eight states to federal precedent remains an open question. Moreover, 37 states filed an amici curiae brief with the Supreme Court...

A Five-Year Anniversary For A Major Standard-Setting Antitrust Law

Posted  06/24/09
Five years ago this month, a new federal law aimed at encouraging standard-setting activities took effect – the Standards Development Organization Advancement Act (SDOAA) of 2004.  Why did Congress pass it?  And five years later, how has it fared? In many industries, non-profit “standards development organizations” (SDOs) collaborate with businesses to develop industry-wide standards – from common light bulb sizes to uniform tests of concrete strength.  This work is generally...

Think Indirect Purchaser Liability is Dead? Think Again.

Posted  06/22/09
Since the Supreme Court’s 1977 decision in Illinois Brick Co. v. Illinois, 431 U.S. 720, plaintiffs have not been able to recover damages suffered by indirect purchasers from anticompetitive conduct stemming from §1 of the Sherman Act.  While this bar has existed for more than 30 years, plaintiffs are not without recourse. That’s because more than 25 states enacted laws, sometimes called “Illinois Brick repealers,” that specifically permit recovery for...

Bundled Discounts – Good For Competition?

Posted  06/10/09
The Supreme Court’s decision in Pacific Bell Telephone Co. v. linkLine Communications, Inc., 129 S.Ct. 1109 (2009), suggests that the Court will apply predatory pricing analysis to all antitrust claims with an aspect of low pricing. So it follows that bundled-discounting claims would likely receive the same treatment from the Court that price squeeze claims did.  A bundled discount is where a firm grants a discount on one product if...

Price Squeeze Claims: Antitrust Or Anticompetition?

Posted  06/4/09
Some major changes could be afoot in how U.S. law governs monopolist pricing.  The Supreme Court’s February 25, 2009 decision in Pacific Bell Telephone Co. v. linkLine Communications Inc., 129 S.Ct. 1109, marks quite a departure from long-standing price claim precedent.  Let’s take a look how. Price squeezing can occur when a dominant supplier in one market also competes with its buyers in their market.  The dominant firm (sometimes called the...
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