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Antitrust

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This Antitrust Outline only has the framework to which the substance needs to be added. If you are so inclined, please feel free!

Introduction to the Competition Model

Policies and Goals of Antitrust Regulation

Common Law

Framework for Analysis

Economic Problem

Market in Movement

Judicial Emphasis on Economic Reasoning

Special Problems of Antitrust Enforcement

Enforcement

Direct Purchaser

Generally, only the "direct purchaser" may have standing to sue for antitrust injury. In Illinois Brick Co. v. Illinois, an indirect purchaser of concrete blocks attempted to sue the manufacturer of the blocks. The blocks had come to the purchaser through two levels in the supply chain. The indirect purchaser was found to not have been injured by the alleged antitrust violations.

One policy rationale behind the direct purchaser requirement is that there are many indirect purchasers compared to the number of direct purchasers, which spreads out the damage more. Less damage per purchaser spells out less incentive to sue for recovery than the direct, larger-volume purchaser has.

Antitrust Injury

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. tells us that antitrust injury must come "'by reason of' that which made the acquisitions unlawful." What makes the acquisition unlawful is injury to competition.

The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be “the type of loss that claimed violations . . . would be likely to cause.”

"Business or Property

A plaintiff suing for antitrust recovery under section 4 of the Clayton Act myst allege injury to "business or property." Sometimes this means that plaintiff must have an injury to a "commercial injury." In Reiter v. Sonotone Corp., the defendant argued that "business or property" means only commercial business (commercial interests or enterprises), but the holding said that "business or property" means personal property or interest as well.

Standing to Sue

For one to have standing, a nexus must exist between the plaintiff's harm and the alleged violation. Blue Shield of Virginia v. McCready describes that the court looks for a physical and economic connection between the violation alleged and the harm caused. There are several Factors of importance:

  • Remoteness
  • Foreseeability
  • If the injury plaintiff suffered was inextricably intertwined with the injury the conspirators sought to inflict

Associated Gen. Contractors v. Cal. State Council of Carpenters lays out more factors that will help determine if the plaintiff has standing or not:

  • Causal connection between alleged violation and harm to plaintiff
  • Whether or not the defendant had improper motive
  • Whether injury is that which Congress wanted to stop
  • Directness of asserted injury
  • Speculative nature of relationship between the alleged antitrust violation and the alleged injury
  • Risk of duplicative recovery or complex apportionment of damages


Additional Antitrust Defenses

Remedies

Cartels and Other Joint Conduct by Competitors

Horizontal Restraints

Vertical Restrictions

Intrabrand Distributional Restraints

Interbrand Vertical Foreclosure

Monopoly Structure, Power, and Conduct

The Problem of Monopoly

The Modern Offense of Monopolization

Attempts to Monopolize and Predatory Pricing

Mergers and Acquisitions

Vertical Integration Through Merger

Mergers of Competitors

Mergers of Potential Competitors

The Failing Company Defense

Private Enforcement of Section 7

Interlocking Directorates Under Section 8 of the Clayton Act

Should We Regulate Bigness?

Secondary-Line Differential Pricing and the Robinson-Patman Act

Introduction

Primary-Line Discrimination

Secondary-Line Discrimination

Criminal Violations of the Robinson-Patman Act

Antitrust and Other Forms of Regulation

Antitrust and Agency Regulation

Petitions to the Government

Problems of Federalism: Preemtion and the "State Action" Doctrine