Antitrust and Trade Regulation Commons^™

Increasing Competition In Live Music: The Case For Better Enforcement Of The Live Nation Entertainment Consent Decree, Tj Hunt

Cleveland State Law Review

In 2009, Live Nation and Ticketmaster Entertainment expressed their intent to merge to become Live Nation Entertainment. Before the merger, Ticketmaster Entertainment was the leading live music ticketing and marketing company. Live Nation was the leading producer of live music events. Live Nation also entered the primary ticket sales market and led merchandising at its entertainment venues. Antitrust concerns arose that this newly formed entity would be a near-monopoly in live music. Despite general antitrust concerns and lawsuits from consumers, smaller promoters, seventeen state attorneys general, and the Department of Justice (“DOJ"), Live Nation Entertainment agreed to a consent decree …

Sherman's Missing "Supplement": Prosecutorial Capacity, Agency Incentives, And The False Dawn Of Antitrust Federalism, Daniel E. Rauch

Cleveland State Law Review

When the Sherman Act passed in 1890, it was widely expected that it would operate primarily as a "supplement" to vigorous state-level antitrust enforcement of state antitrust statutes. This did not happen. Instead, confounding the predictions of Congress, the academy, and the trusts themselves, state antitrust enforcement overwhelmingly failed to take root in the years between 1890 and the First World War. To date, many scholars have noted this legal-historical anomaly. None, however, have rigorously or correctly explained what caused it. This Article does.

Using historical and empirical research, this Article establishes that the best explanation for the early failure …

Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris

Cleveland State Law Review

This Article continues to examine an important question: are trademarks a source of market power, or, put differently, when are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars. However, by raising the question and presenting some scenarios that can provide answers, my hope is that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest to address this question, I explore the proposition that creative deception and the wealth-generating capacity of trademarks are unorthodox elements that actually contribute to allegations of …

An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke

Cleveland State Law Review

The balance between incentivizing innovation through exclusivity protection and maintaining competitive market conditions—including prices for consumers—is a difficult line to toe. Product hopping has characteristics that constitute a violation of the Sherman Antitrust Act because companies can maintain monopoly power in the pharmaceutical market. While some monopoly power is justified as an incentive for incredibly costly innovation, extended periods of exclusivity harms consumers by keeping prescription drug prices artificially inflated. Allowing generic drug manufacturers to compete sooner in the prescription drug market by disallowing product hopping by name-brand pharmaceutical drug companies will aid in driving down prices. Courts should adopt …

Colluding Under The Radar: Achieving Collusion Through Vertical Exchange Of Information, Julia Shamir, Noam Shamir Recanati Graduate School Of Business, Tel Aviv University

Cleveland State Law Review

In the absence of antitrust regulations, rational profit-maximizing firms in an oligopoly may freely act in consort to reach a consensus and to maintain prices above the competitive level. However, in light of potential exposure to antitrust investigations and prospective heavy sanctions, firms attempt to achieve collusive outcomes without resorting to explicit agreements. One mechanism that may promote such tacit collusion is information-sharing; that is, the otherwise competing firms exchange their private information in order to set and maintain supra-competitive prices. Thus far, the attention of the antitrust authorities and scholars has focused on the phenomenon of horizontal information-sharing, i.e., …

Novel Neutrality Claims Against Internet Platforms: A Reasonable Framework For Initial Scrutiny , Jeffrey Jarosch

Cleveland State Law Review

This Article examines a recent trend in which the Federal Trade Commission and other enforcement agencies investigate Internet platforms for behavior that is insufficiently “neutral” towards users or third parties that interact with the platform. For example, Google faces a formal FTC investigation based on allegations that it has tinkered with search results rather than presenting users with a “neutral” result. Twitter faces a formal investigation after the social media service restricted the ways in which third party developers could interact with Twitter through its application programming interface (“API”). These investigations represent a new attempt to shift the network neutrality …

On The Ramifications Of Leegin Creative Leather Products, Inc. Psks, Inc.: Art Tie-Ins Next Essay , Alan Devlin

Cleveland State Law Review

This Essay considers whether the Roberts Court would now overrule the last bastion of the Harvard School-the rule against product tying-if given the opportunity. The economic arguments against per se treatment of tie-ins apply a fortiori to those against resale price maintenance. In addition, applying the line of thought followed by the majority in Leegin leads inexorably to the conclusion that the per se rule proscribing tying arrangements should be similarly overruled. Part II explains the business practice of resale price maintenance and the law's formerly mistaken understanding of its consequences. The Leegin case will then be introduced and compendiously …

The Antitrust Legacy Of Justice William O. Douglas, C. Paul Rogers Iii

Cleveland State Law Review

One cannot study the history of antitrust law without running headlong into the opinions of Associate Justice William 0. Douglas. In his thirty-six years on the Supreme Court, he authored thirty-five majority opinions and nearly as many dissenting or concurring opinions in cases involving antitrust questions or issues. It is quite probable that Justice Douglas authored more antitrust opinions, both for the majority and in dissent, than any Supreme Court justice in history. This Article will attempt to further define and refine Justice Douglas' antitrust philosophy by examining his written opinions and writings. It will then attempt to measure that …

Monopoly Leveraging In Verizon Communications V. Law Offices Of Curtis V. Trinko, Llp: Why The United States Supreme Court Should Draw A Clear Line For Anticompetitive Behavior Violative Of The Sherman Act, Anthony J. Lazzaro

Cleveland State Law Review

The Court should draw the line for anticompetitive behavior violative of the Sherman Act above the mere gain of a competitive advantage in the second market. If the Supreme Court were to draw the line at this level, the circuit split and the resulting confusion would be ameliorated. By recognizing the three types of conduct that characterize monopoly leveraging, with the exception to the third type of conduct, the Supreme Court would provide much needed guidance for the lower federal courts in determining whether a firm's behavior in a given case rises to the level of the monopoly leveraging. The …

Antitrust Damages For Consumer Welfare Loss, David C. Hjelmfelt, Channing D. Strother Jr.

Cleveland State Law Review

Section 4 of the Clayton Act provides that any person who is injured in his business or property by reason of anything forbidden in the antitrust laws "shall recover threefold the damages by him sustained." The current private enforcement model usually permits plaintiffs to recover damages based upon the excessive prices charged to consumers. However, economists see the real loss to society from an antitrust violation to be the consumer welfare loss which results from reduced output. The authors have been unable to locate any antitrust case which has permitted recovery of damages for this consumer welfare loss. Therefore, this …

Antitrust Standing And The Rule Against Resale Price Maintenance, Donald J. Polden

Cleveland State Law Review

This Article examines the textual and prudential foundations of the antitrust standing and antitrust injury doctrines. This examination is conducted through a textual analysis of section 4 of the Clayton Act, which provides a private right of action for persons injured by violations of the antitrust laws, and a developmental review of the principal Supreme Court cases articulating and applying those doctrines. This examination concludes that the Court has crafted antitrust standing and injury doctrines which in part either contradict the textual requirements of section 4 or which are not rooted in any perceptible notion of legitimate statutory objectives. The …

Antitrust Improvements Act Of 1976, Parens Patriae Act: Paper Tiger Or Sleeping Giant, Patricia J. O'Donnell-Gaynor

Cleveland State Law Review

The Parens Patriae Act has been in effect for several years. Although there has been relatively little time in which to test the full measure of its effectiveness, it has gradually become apparent that much of the Act's promise remains unfulfilled. Recent federal court decisions, when coupled with the problems of funding which are being encountered by many state attorneys general, might be endangering the Act's continuing vitality and undercutting the legislature's intent in enacting the measure. This Note will discuss some of the major issues which are emerging under the Act and will attempt to separate the promise from …

Contract Market Self-Regulation Under The Commodity Exchange Act, Marshall J. Nachbar

Cleveland State Law Review

On May 3, 1982, the Supreme Court decided Curran v. Merrill Lynch, Pierce, Fenner & Smith, Inc. The Court answered the question o fwhether there was a private right of action for violations of the Commodity Exchange Act by holding that there was an implied right of action. In Curran, the CFTC had argued that a private right of action strengthens the enforcement and regulatory mechanisms already in place. The Court apparently found this to be a persuasive argument. Whether a private right of action will have the desired effect remains to be seen.

City Of Cleveland V. Cei: A Case Study In Attempts To Monopolize By Regulated Utilities, Barry Kellman, Nicholas J. Marino

Cleveland State Law Review

In Cleveland, Ohio a legal controversy had developed which compels the judiciary to evaluate the limits of competition. Seventy years of head-to-head combat between a large investor-owned electric system and a smaller city-owned company has entered the federal courts as an issue to be resolved under section two of the Sherman Act. The precise issue is whether a refusal by the larger utility to sell or wheel power to the smaller utility constitutes an illegal act of monopolization. To resolve this issue, the judiciary must superimpose upon a stormy political dispute an abstract formulation of proper and improper business conduct. …

Protest Boycotts As Restraints Of Trade Under The Sherman Act: A Proposed Standard, Francis M. Allegra

Cleveland State Law Review

This paper will maintain that genuine protest boycotts are not anticompetitive because they do not restrict the economic freedom of either the participants or the boycotted entity; nor are they used to enforce an anticompetitive practice, such as collusion or horizontal exclusion. In Part II, cases dealing with unilateral and concerted refusals to deal will be examined to determine under which circumstances refusals to deal are illegal. Part III will analyze two recent protest boycotts cases: Crown Central Petroleum v. Waldman, and Osborn v. Pennsylvania-Delaware Service Station. The legal standards used in these cases will be rejected in Part IV …

A Practical Approach To Representation Of A Client During A Federal Antitrust Grand Jury Investigation, Carl L. Steinhouse

Cleveland State Law Review

Generally, in white-collar crime situations, particularly antitrust, the first time a client may know he is under investigation is after the grand jury proceedings have commenced. The client will usually find out about the investigation through the industry grapevine, through the receipt of a subpoena by his employer or through a subpoena ad testificandum to an individual in his company. It is necessary for an attorney to understand the investigative process in order to properly represent his client in the antitrust proceedings that follow.

A Practical Approach To Representation Of A Client During A Federal Antitrust Grand Jury Investigation, Carl L. Steinhouse

Cleveland State Law Review

Generally, in white-collar crime situations, particularly antitrust, the first time a client may know he is under investigation is after the grand jury proceedings have commenced. The client will usually find out about the investigation through the industry grapevine, through the receipt of a subpoena by his employer or through a subpoena ad testificandum to an individual in his company. It is necessary for an attorney to understand the investigative process in order to properly represent his client in the antitrust proceedings that follow.

Defining Market Under The Clayton Act: Consideration Of Technological Capacity, Carol Szczepanik

Cleveland State Law Review

This article will discuss technological capacity, an economic consideration to which some courts seem to give insubstantial consideration in challenges to section 7 of the Clayton Act. If courts consistently evaluated evidence of technological capacity, section 7 could be more effective in prohibiting mergers that have the effect of lessening competition in an economically significant market.

Analysis Of The Ftc Line Of Business And Corporate Patterns Reports Litigation, Douglas P. Whipple

Cleveland State Law Review

Under the auspices of the information gathering authority granted to the Federal Trade Commission (FTC) by the Federal Trade Commission Act, the Commission has developed two corporate report programs entitled "The Line of Business [LB] Report Program" and "The Corporate Patterns Report [CPR] Program." These broad-based statistical surveys solicit from domestic corporations information on financial performance, value of shipments, net manufacturing activities, and significant acquisitions and disposals. The LB and CPR survey orders were issued to hundreds of corporations, mostly giant conglomerates. Predictably, the corporations resisted the report requirements. The inevitable result of this dispute over the LB and CPR …

Misprision Of Antitrust Felony, Robert J. Hoerner

Cleveland State Law Review

When an attorney discovers clear evidence that his corporate client has committed an antitrust felony, he and his client are immediately confronted with an interrelated tangle of extraordinarily difficult questions. There has been much concern over these questions, particularly since violation of sections 1, 2 and 3 of the Sherman Act became indictable as felonies on December 21, 1974. Little has been written, however, on the misprision issue. Antitrust practitioners are not ordinarily trained in the contours of 18 U.S.C. § 4, the federal misprision statute. Our criminal practice is typically in rarified and antiseptic economic fields, and does not …

Defining Market Under The Clayton Act: Consideration Of Technological Capacity, Carol Szczepanik

Cleveland State Law Review

This article will discuss technological capacity, an economic consideration to which some courts seem to give insubstantial consideration in challenges to section 7 of the Clayton Act. If courts consistently evaluated evidence of technological capacity, section 7 could be more effective in prohibiting mergers that have the effect of lessening competition in an economically significant market.

Misprision Of Antitrust Felony, Robert J. Hoerner

Cleveland State Law Review

When an attorney discovers clear evidence that his corporate client has committed an antitrust felony, he and his client are immediately confronted with an interrelated tangle of extraordinarily difficult questions. There has been much concern over these questions, particularly since violation of sections 1, 2 and 3 of the Sherman Act became indictable as felonies on December 21, 1974. Little has been written, however, on the misprision issue. Antitrust practitioners are not ordinarily trained in the contours of 18 U.S.C. § 4, the federal misprision statute. Our criminal practice is typically in rarified and antiseptic economic fields, and does not …

The N.F.L.'S Final Victory Over Smith V. Pro-Football, Inc.: Single Entity - Interleague Economic Analysis, Terrance Ahern

Cleveland State Law Review

The financial expansion of the N.F.L. has been accompanied by the promulgation of league rules to ensure league stability. These rules include several player service market restraints, which have been adopted by the N.F.L. to ensure competitive equality between the franchises. This note analyzes the validity of these restraints under the Sherman Antitrust Act in light of the recent decision of the District of Columbia Circuit Court of Appeals in Smith v. Pro Football, Inc. and presents a new approach to the economic structure of the N.F.L. which may validate the current restraints.

The N.F.L.'S Final Victory Over Smith V. Pro-Football, Inc.: Single Entity - Interleague Economic Analysis, Terrance Ahern

Cleveland State Law Review

The financial expansion of the N.F.L. has been accompanied by the promulgation of league rules to ensure league stability. These rules include several player service market restraints, which have been adopted by the N.F.L. to ensure competitive equality between the franchises. This note analyzes the validity of these restraints under the Sherman Antitrust Act in light of the recent decision of the District of Columbia Circuit Court of Appeals in Smith v. Pro Football, Inc. and presents a new approach to the economic structure of the N.F.L. which may validate the current restraints.

Antitrust Grand Jury Procedure, Carl Steinhouse

Cleveland State Law Review

The typical grand jury antitrust investigation is a laborious process which takes from a minimum of six months to as much as several years to complete. Accordingly, it is an expensive and time consuming process not only to the grand jurors and the government, but also to corporations and other persons under investigation, and the courts. For this reason, antitrust grand jury investigations are not lightly undertaken, and they require specific authorization by the Assistant Attorney General. The process from the inception of the investigation through the return of an indictment is somewhat involved and, in many aspects, unique to …

Motives Of Non-Profit Organizations And The Antitrust Laws, Frank J. Nawalanic

Cleveland State Law Review

Non-profit status has traditionally been delegated and regulated by state law. It is becoming increasingly clear that state law is expanding the types of organization allowed non-profit status, thus inviting more abuses of the status to exist. This is exemplified by New York's "Not-For-Profit Corporation Law" and recent indications by Pennsylvania and California legislators of their contemplation of enacting similar statutes. It is with this understanding that the applicability of the antitrust laws to non-profit corporations will be considered.

Meeting Competition In Good Faith, And The Premium Product, Arthur D. Austin

Cleveland State Law Review

The broad purpose of the Robinson-Patman Act is to prohibit sellers from granting price allowances, and other specified benefits which give competitive advantage to a purchaser and also discriminate against his competitors. It came into existence largely because the Clayton Act had proven ineffective in dealing with the chain store, which made sizeable capital investments "in facilities for performing bulk storage, redelivery, and financing, so as to 'integrate' the retailing and wholesaling functions... and to eliminate middleman profits by dealing with the manufacturer directly." The claims generated such concern among the independents that they demanded and obtained legislative relief. Whether …

Jurisdiction In International Application Of United States Antitrust Laws, Hiroshi Fukuda

Cleveland State Law Review

However, the trend to apply United States antitrust laws to international trade agreements has given rise to another important question, namely the jurisdictional problem of antitrust laws. Many people, both in this country and abroad, criticized this trend as an abuse of power and invasion of foreign sovereignty. The objective of this paper is, therefore, to analyze the underlying theories of jurisdiction with respect to antitrust laws and to discover the existing jurisdictional limitations imposed by the courts on themselves.

Hudson Fair Trade Case - The Need For Constitutional Amendment, Richard W. Pogue

Cleveland State Law Review

The Hudson case has dual significance. First, it is important in its holding of a relatively new concept in fair trade legislation-the "notice" or "implied contract" doctrine under which resellers are deemed to have entered into a legislatively defined contract by accepting goods with notice of the fair trade price limitations. This concept, previously upheld in Virginia, finds its counterpart in the current Quality Stabilization Bills pending in Congress which would include provision for a federal right to enforce resale price maintenance against resellers of branded commodities who are given prior notice of price restrictions. A second respect in which …

Ball, Bat And Bar, Harold Seymore

Cleveland State Law Review

Most Americans assume that they live under one set of laws which govern everybody. They also think that while monopolies and their abuses were once a problem, regulatory measures have long since eliminated or controlled them. The business of organized baseball proves that both these assumptions are mistaken. Recent operations of some baseball "companies" have underscored the falsity of these assumptions. The baseball business operates under its own complicated body of private law, and has been doing so ever since the business got its real start with the formation of the National League in 1876. Organized baseball is also a …