Field of law

Antitrust & Competition

Per se rules and the rule of reason, price signaling and algorithms, merger notification and review, monopolization, resale price and exclusivity, private suits and standing.

Second Requests and How They Reshape a Deal Timetable

Where an agency needs more than the initial waiting period, it issues a request for additional information and documentary material before that period expires. The waiting period is then extended until thirty days after both parties substantially comply, or ten days in a cash tender offer. Because the parties control the pace of production, the practical timetable is set by negotiated timing agreements rather than by the statute.

6 min readFederal law

Antitrust & Competition

Private Antitrust Suits: Standing, Indirect Purchasers and Treble Damages

Any person injured in business or property by an antitrust violation may recover threefold damages, costs and a reasonable attorney's fee. The claimant must show antitrust injury — harm of the type the antitrust laws were meant to prevent, flowing from what makes the conduct unlawful — and must satisfy standing factors concerned with directness and duplicative recovery. Under federal law only direct purchasers may recover an overcharge, though many states permit indirect purchasers to sue.

7 min readFederal and state

Antitrust & Competition

Exclusive Dealing and Tying Arrangements

Exclusive dealing is assessed by the share of a relevant market foreclosed to rivals, together with the duration of the contracts, their terminability and the availability of other distribution. Tying requires two separate products, a sale of one conditioned on the other, sufficient economic power in the tying product, and a not insubstantial volume of commerce in the tied product. A patent no longer creates a presumption of that power.

7 min readFederal law

Antitrust & Competition

Price Discrimination Under the Robinson-Patman Act

Section 2 of the Clayton Act, as amended, forbids a seller from discriminating in price between different purchasers of commodities of like grade and quality where the effect may be substantially to lessen competition or injure competition with the person granting or receiving the benefit. The claim requires two contemporaneous consummated sales of goods to different buyers at different prices. Cost justification and a good faith effort to meet a rival's equally low price are complete defenses.

7 min readFederal law

Antitrust & Competition

Proving an Agreement From Parallel Conduct

Section 1 reaches only concerted action, so a plaintiff must prove an agreement rather than similar behavior. Conscious parallelism — rivals independently matching one another in a market where each expects the others to respond — is lawful. To get past that, a plaintiff needs evidence tending to exclude the possibility of independent action, usually assembled from plus factors: communications, conduct against unilateral self-interest, abrupt uniform changes and pretextual explanations.

6 min readFederal law

Antitrust & Competition

Per Se Rules and the Rule of Reason

Section 1 reaches only unreasonable restraints. A narrow set of naked horizontal agreements — price fixing, bid rigging, market and customer allocation — is unlawful per se, without proof of market power or effect. Everything else is judged under the rule of reason, a burden-shifting inquiry into actual competitive effect in a defined market. An abbreviated or quick-look analysis sits between them for restraints whose harm is obvious but whose category is not.

7 min readFederal law

Antitrust & Competition

Criminal Antitrust Enforcement and the Leniency Program

Agreements among competitors to fix prices, rig bids or allocate markets are felonies under the Sherman Act, carrying imprisonment for individuals and corporate fines that can be calculated as twice the gain or loss where that exceeds the statutory maximum. The Antitrust Division's leniency policy offers non-prosecution to the first qualifying self-reporter and to its cooperating personnel, and to no one else, on conditions of prompt disclosure, complete cooperation and restitution.

6 min readFederal law

Antitrust & Competition

Monopolization: Power Plus Exclusionary Conduct

A monopolization claim requires possession of monopoly power in a relevant market and the willful acquisition or maintenance of that power, as distinguished from growth resulting from a superior product, business acumen or historic accident. Power is shown by a high share in a market protected by entry barriers, or by direct evidence. Attempted monopolization substitutes a dangerous probability of success plus specific intent for actual power.

7 min readFederal law

Antitrust & Competition

Resale Price Maintenance After Leegin

The Supreme Court in Leegin overruled Dr. Miles and held that minimum resale price agreements are judged under the rule of reason rather than condemned per se. Maximum resale prices had already moved, as had non-price territorial restrictions. Federal analysis now weighs the source of the restraint, its prevalence and the market power of the parties. Several state antitrust statutes retain per se treatment, so a national program can be lawful federally and unlawful by state.

7 min readFederal and state

Antitrust & Competition

Market Definition and the Hypothetical Monopolist Test

Both the merger provision and the monopolization provision require a relevant market with a product dimension and a geographic dimension. Product markets are drawn by reasonable interchangeability of use and cross-elasticity of demand, tested by asking whether a hypothetical sole seller of a candidate group could profitably impose a small but significant non-transitory price increase. If it could not, the next-best substitute is added and the question is repeated.

7 min readFederal law

Antitrust & Competition

Premerger Notification: Thresholds and the Waiting Period

Section 7A of the Clayton Act requires both parties to a qualifying acquisition to file notification and observe a waiting period before closing. Reportability turns on a commerce test, a size-of-transaction test and, for transactions in the middle band, a size-of-person test, all indexed to changes in gross national product. The waiting period runs thirty days for most deals and fifteen for cash tender offers and certain bankruptcy sales.

6 min readFederal law

Fields of law

This journal

Antitrust & Competition

Second Requests and How They Reshape a Deal Timetable

Private Antitrust Suits: Standing, Indirect Purchasers and Treble Damages

Exclusive Dealing and Tying Arrangements

Price Discrimination Under the Robinson-Patman Act

Proving an Agreement From Parallel Conduct

Per Se Rules and the Rule of Reason

Criminal Antitrust Enforcement and the Leniency Program

Monopolization: Power Plus Exclusionary Conduct

Resale Price Maintenance After Leegin

Market Definition and the Hypothetical Monopolist Test

Premerger Notification: Thresholds and the Waiting Period