Law Commons^™

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 …

Raising The Price Of Pork In Texas: A Few Thoughts On Ghosh, Bush, And The Future Of Antitrust Immunity, Christopher L. Sagers

Law Faculty Articles and Essays

Shubha Ghosh and Darren Bush were personally involved in real-world opposition to the Love Field airline terminal deal, organizing petitioning efforts in Congress and otherwise trying to get it stopped.My comments here basically ride two horses, because Ghosh and Bush raise two important and intriguing problems. First, I think the problem in the Love Field case and other case law they discuss is really just the problem with all of federal antitrust. Antitrust is in a dire state across the board. Lately, we seem near the completion of its euthanasia, which happened pretty much as Adams and Brock predicted, although …

Clash Of The Titans: Collisions Of Economic Regulations And The Need To Harmonize Prescriptive Jurisdiction Rules, Milena Sterio

Law Faculty Articles and Essays

Part I of this article describes regulatory clashes involving different states' public laws, and then focuses on certain areas of law, including antitrust, securities, and Internet commerce and publishing, where such clashes are most likely to take place. Part II focuses on the different solutions to this regulatory puzzle invoked by scholars, advocating either territorial-based or substance-based approaches. Part III then critiques the two approaches, while emphasizing the need to address the issue from a global perspective, that is, by seeking to harmonize jurisdiction-allocating rules on an international level.

The Demise Of Regulation In Ocean Shipping: A Study In The Evolution Of Competition Policy And The Predictive Power Of Microeconomics, Christopher L. Sagers

Law Faculty Articles and Essays

Over its 140 year history, ocean liner shipping has almost always enjoyed an antitrust exemption permitting price-fixing cartels of ocean carriers. The exemption was premised on the belief that problems of cost and capacity inherent in the trade can be resolved only by horizontal collusion. Now that that exemption has been whittled away by deregulatory efforts, the pre- and post-deregulation evidence presents one of the world's rare opportunities for natural experiment on the behavior and effectiveness of collusive cartel pricing. Moreover, because normal and effective competition never really existed prior to 1998, the normative foundation of the antitrust exemption was …

Antitrust Immunity And Standard Setting Organizations: A Case Study In The Public-Private Distinction, Chris Sagers

Law Faculty Articles and Essays

This paper uses an ongoing issue of local legal doctrine as a case study to provide insights into a problem of larger political philosophy: the problem whether the difference between "public" and "private" should be made to matter and, indeed, whether there is a difference at all. The case study is as follows: In our system, state governments are free to fashion their own trade policies in virtually any manner they choose. During the past century there has evolved a complex range of relationships between government and the businesses regulated by those policies, the result often being that businesses themselves …

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 …

How Mfn Clauses Used In The Health Care Industry Unreasonably Restrain Trade Under The Sherman Act, Beth Ann Wright

Journal of Law and Health

When used in the health care industry, an MFN clause is a contractual agreement that guarantees a health insurer the same best price as their market competitors. MFN clauses have the effect of unnecessarily raising consumer costs, reducing choice among providers, constraining access to care and preventing the development of alternative health care delivery models. The purpose of this paper is four-fold. First, to design a four-quadrant matrix to evaluate the pro-competitive and anticompetitive purpose and effects of MFN clauses under Section 1 of the Sherman Act. Second, to defeat the jurisprudential presumption that MFN clauses are pro-competitive in the …

The Legal Structure Of American Freedom And The Provenance Of The Antitrust Immunities, Christopher Sagers

Law Faculty Articles and Essays

It is a reflection of the subtle relationship between legal doctrine and the larger social context it regulates that, on occasion, some humble point of mere theory proves to be the lynchpin of a serious social problem. Often the most pernicious aspect of such a situation will be the very obscuriyy that causes courts to overlook it.

That is emphatically the case with the issue addressed in this paper. Confusion persists over the seemingly academic question whether the so-called "Noerr-Pennington" or "petitioning" immunity, a doctrine in antitrust law which protects persons from being sued when they seek action from their …

Can Cleveland Clinic Health System Be Trusted: Whether A Proposed Merger Or Acquisition By Cleveland Clinic Health System Will Substantially Impair The Competitive Health Care Market In Northeast Ohio Resulting In A Violation Of Federal Antitrust Statutes, Matthew T. Polito

Journal of Law and Health

This article analyzes the implications of the Clayton Antitrust Act (Clayton Act) and the Sherman Antitrust Act (Sherman Act) as they pertain to the Cleveland Clinic Health System (CCHS). Part One provides background analysis of these two statutes, and the application of those statutes to mergers in the health care industry. Part Two discusses the elements needed to prove the government's prima facie case. This consists of a discussion of a relevant market, which includes the product and geographic markets. This section also contains a description and analysis of market concentration, measured by the Herfindahl-HIrschman Index (HHI). Part Three provides …

The Stifling Of Competition By The Antitrust Laws: The Irony Of The Health Care Industry, John A. Powers

Journal of Law and Health

The text to follow is intended to provide an overview of the legal basis for the imbalance of power currently inherent to the health care industry, suggesting several reasons for its development. It also provides an outline of the current basis for antitrust liability in this country and describes some possible solutions. The most practical and effective means through which to rectify this imbalance would be to enact new federal legislation that would amend the antitrust laws to allow for limited "unionization" of independently practicing physicians for collective bargaining purposes.

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers

Law Faculty Articles and Essays

This Note contends that consumers should have a private damages action under section 10. Part I discusses the method federal courts currently employ to determine whether a private cause of action should be recognized under a given federal statute. Part II applies this standard to section 10, and it argues that, although the federal courts currently exhibit a fairly restrictive attitude toward implication of remedies, an action should be implied under section 10 because the Real Estate Settlement Procedures Act of 1974 (RESPA) was enacted at a time when Congress relied on a more permissive judicial implication doctrine. Finally, Part …

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.

Purpose And Promise Unfulfilled: A Different View Of Private Enforcement Under The Federal Trade Commission Act, Stephen W. Gard

Stephen W. Gard

In its September-October issue of 1974, this Review published a student comment concerning private enforcement and rule making under the Federal Trade Commission Act.10 The Comment took the position that a private right of action should not be implied under section 5 of the Act, which unambiguously declares that "unfair or deceptive acts or practices in commerce are . . . unlawful."' The Comment thus endorsed the holding in Holloway v. Bristol-MyersCorp. that a consumer who has suffered economic harm as the proximate result of the commission of an unfair or deceptive trade practice should not be entitled to redress …

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 …