Antitrust and Trade Regulation Commons^™

Leegin, The Rule Of Reason, And Vertical Agreement, Herbert J. Hovenkamp

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The Supreme Court’s Leegin decision overturned the longstanding rule of per se illegality for resale price maintenance and applied a rule of reason. One might think that the question whether a vertical “agreement” exists between a manufacturer and a dealer should not be affected by the mode of analysis to be applied after an agreement is found. First one asks whether an agreement exists, and determines whether the per se rule or rule of reason applies only after receiving an affirmative answer. Nevertheless, ever since Colgate the Supreme Court has generally taken a more restrictive approach on the agreement issue …

American Needle And The Boundaries Of The Firm In Antitrust Law, Herbert J. Hovenkamp

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In American Needle the Supreme Court unanimously held that for the practice at issue the NFL should be treated as a “combination” of its teams rather than a single entity. However, the arrangement must be assessed under the rule of reason. The opinion, written by Justice Stevens, was almost certainly his last opinion for the Court in an antitrust case; Justice Stevens had been a dissenter in the Supreme Court’s Copperweld decision 25 years earlier, which held that a parent corporation and its wholly owned subsidiary constituted a single “firm” for antitrust purposes. The Sherman Act speaks to this issue …

American Needle: The Sherman Act, Conspiracy, And Exclusion, Herbert J. Hovenkamp

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This essay, part of a colloquium in the CPI Antitrust Journal, explores the meaning and significance of the Supreme Court’s decision in American Needle v. NFL. The Supreme Court held that for purposes of the dispute at hand the NFL should be treated as a collaboration of its member teams rather than a single entity. The factors that the Supreme Court considered most important were, first, that the NFL’s member teams are individually owned profit making entities who compete with each other in at least some economic markets, such as that for the sale of apparel bearing NFL symbols. …

Intra-Enterprise Activity, Joint Ventures And Sports Leagues: Identifying Unilateral Conduct Under The Antitrust Laws, Herbert J. Hovenkamp

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In the American Needle case the Supreme Court will consider whether the NFL’s decision to give an exclusive trademark license to one firm should be counted as “unilateral” on the NFL’s part, or rather as the concerted joint venture activity of the NFL’s individual member teams. The intellectual property in question is not trademarks in the NFL itself, but rather the trademarks and other intellectual property developed separately by each individual team, and which the teams in turn have licensed exclusively to the NFL.

In general, when a joint venture is engaged in its own business the unilateral characterization is …