Law Commons^™

Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell

Michigan Law Review

In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under section …

Pay-For-Delay Settlements In The Wake Of Actavis, Michael L. Fialkoff

Michigan Telecommunications & Technology Law Review

“Pay-for-delay” settlements, also known as reverse payments, arise when a generic manufacturer pursues FDA approval of a generic version of a brand-name drug. If a patent protects the brand-name drug, the generic manufacturer has the option of contesting the validity of the patent or arguing that its product does not infringe the patent covering the brand-name drug. If the generic manufacturer prevails on either of these claims, the FDA will approve its generic version for sale. Approval of a generic version of a brand-name drug reduces the profitability of the brand-name drug by forcing the brand-name manufacturer to price its …

Model-Based Pricing In Hurricane Insurance: A Case Study For Judicial Reform Of The Mccarran-Freguson Act, Benjamin Holland Able

University of Michigan Journal of Law Reform

The McCarran-Ferguson Act (MFA) exempts various aspects of state insurance operations from federal antitrust enforcement. This exemption is a source of longstanding controversy, due in part to its potentially harmful effect on consumers in product pricing. In hurricane insurance, there is a burgeoning debate concerning insurers' use of predictive computer models rather than shared loss data to set premiums for the industry. By using these models in hurricane-prone states, insurers have increased the price of hurricane insurance dramatically. Where these new prediction methods are used, MFA exemption may facilitate supracompetitive pricing in ways its architects could not have foreseen. This …

Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers

Michigan Law Review

Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.

The Case For Rebalancing Antitrust And Regulation, Howard A. Shelanski

Michigan Law Review

The continued growth of forensic DNA databases has brought about greater interest in a search method known as "familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …

Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr

Michigan Law Review

This Note argues that a careful analysis of the Supreme Court's opinion in Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. demonstrates that, despite the expansive dicta appearing in part IV of that opinion, the Court did not intend to reshape the course of its Robinson-Patman Act jurisprudence in any significant way. The Court's opinion operated well within the confines of established Robinson-Patman Act doctrine, even if its searching review of the evidence presented at trial represented a rare foray into the arena of factual error correction. After Reeder-Simco, however, many commentators emphasized the dicta in part IV …

There's No "I" In "League": Professional Sports Leagues And The Single Entity Defense, Nathaniel Grow

Michigan Law Review

This Note argues that outside of labor disputes, sports leagues should be presumed to be single entities. Part I argues that professional sports leagues are single entities in disputes regarding league-wide, non-labor policy. In particular, the focus of the Supreme Court's jurisprudence on economic reality rather than organizational form necessitates a finding that professional sports leagues are single entities in non-labor disputes. Part II argues that professional sports leagues are not single entities for purposes of labor disputes; sports leagues, on the whole, do not involve a unity of interest for labor matters. More importantly, existing precedent outside of the …

Controlling The Competitor Plaintiff In Antitrust Litigation, William H. Page, Roger D. Blair

Michigan Law Review

In Misuse of the Antitrust Laws: The Competitor Plaintiff, Edward Snyder and Thomas Kauper survey a sample of private antitrust cases from the period 1973-1983 and review critically the recent economic literature on raising rivals' costs as an exclusionary practice.

Much in Snyder and Kauper's study is worthy of comment. They have given us a useful picture of private antitrust litigation during the period covered by the sample, one that may be more accurate than a reading of reported cases from that period would suggest. Moreover, their generally critical treatment of the literature on raising rivals' costs is clear …

Misuse Of The Antitrust Laws: The Competitor Plaintiff, Edward A. Snyder, Thomas E. Kauper

Michigan Law Review

In this article we ask (1) under what circumstances are competitor suits meritorious, and (2) do existing rules, such as those requiring proof of market power or other so-called filters and the requirement that plaintiffs suffer "antitrust injury," afford a reasonable prospect of eliminating anticompetitive misuses of the remedy by competitor plaintiffs? We evaluate a sample of seventy-four cases in which plaintiffs sued their rivals to learn how competitor plaintiffs use the private antitrust remedy. And because many of these cases allege anticompetitive exclusionary practices, we consider how recent theories of exclusionary practices may be used to support competitor claims. …

Vertical Distributional Restraints Under Schwinn And Sylvania: An Argument For The Continuing Use Of A Partial Per Se Approach, Martin B. Louis

Michigan Law Review

This phenomenon has been manifested in the vertical distribution cases, which seem to cry out for a departure from the rule of reason approach for several reasons. First, as section I of this article will show, vertical cases frequently involve a package of restraints--a characteristic that compounds all of the difficulties of evaluation mentioned above. Second, vertical restraints reduce intrabrand competition in order, supposedly, to promote interbrand competition. Thus, even if we could identify and measure both the procompetitive and anticompetitive effects of a particular restraint, we cannot assume a one-to-one equivalency, and we lack a workable process by which …

United States V. Falstaff Brewing Corporation: Potential Competition Re-Examined, Michigan Law Review

Michigan Law Review

This Note will examine and criticize the perceived potential competition doctrine suggested by the Court. Then, it will discuss the questions raised in the concurrences concerning the use of subjective evidence and the role of incipient competitive effects. Finally, an alternative approach that focuses on the acquisition of or the possibility of acquiring small, "toehold" firms will be proposed.

Territorial Restrictions And Per Se Rules--A Re-Evaluation Of The Schwinn And Sealy Doctrines, Michigan Law Review

Michigan Law Review

Horizontal territorial restrictions have traditionally been said to be per se illegal. That is, they are illegal no matter what effect they may have on competition. The legality of vertical territorial restrictions, however, is still an unsettled issue. The past decade saw a trend toward considering such restrictions per se violations of section I of the Sherman Act. That trend culminated in United States v. Arnold, Schwinn & Co., a case better known for its speculation than its reasoning. The Supreme Court, which ostensibly announced the per se illegality of these restrictions in Schwinn, will have an opportunity …

The "Warren Court" And The Antitrust Laws: Of Economics, Populism, And Cynicism, Thomas` E. Kauper

Michigan Law Review

No one could quarrel with the simple assertion that the so-called "Warren Court" has had a significant, if indeed not extraordinary, impact on the development of the antitrust laws. It could hardly have been otherwise. The fifteen years since 1953 represent virtually one-fourth of the total history of the Clayton and Federal Trade Commission Acts, and one fifth of the time which has elapsed since passage of the Sherman Act. Every Supreme Court decision under the 1950 amendments to section 7 of the Clayton Act, the so-called antimerger law, has come after the accession of Chief Justice Warren to the …

Note And Comment, Horace Lafayette Wilgus, Edson R. Sunderland, Carl G. Brandt, A George Bouchard

Michigan Law Review

Boycott - Clayton Act - In Duplex Printing Press Company v. Deering et al. (January 3, 192I) 41 S. Ct. 172, the facts were: The plaintiff, a Michigan corporation, manufactures at Battle Creek, and sells throughout the United States, especially in and around New York City, and abroad, very large, heavy and complicated newspaper printing presses. Purchasers furnish workmen, but ordinary mechanics alone are not competent to do this, and so they are supervised by specially skilled machinists furnished by plaintiffs. The plaintiffs have always operated on the "open shop" plan, without discrimination against union or non-union labor, either at …