Law Commons^™

Innovations In Antitrust Enforcement, George A. Hay

George A. Hay

Each antitrust administration, both at the Department of Justice and the Federal Trade Commission, has its theme—one or a few areas of antitrust enforcement that it wants to pay particular attention to and in that way be identified with. And, as part of this emphasis, administrations often seek to innovate in some way or another, to do something different, or in a different way than previous administrations. One factor stimulating innovation in antitrust enforcement is simply that new people with new ideas come into a new job. Sometimes those new people bring with them ideas that they had been developing …

Oligopoly, Shared Monopoly, And Antitrust Law, George A. Hay

George A. Hay

No abstract provided.

Horizontal Agreements: Concept And Proof, George A. Hay

George A. Hay

It is well established that, absent some very special circumstances, agreements on price or certain other terms of trade by otherwise competing entities (i.e., "horizontal agreements") are unlawful per se under the Sherman Act. In practical effect, once the fact of the horizontal agreement has been established, an adverse impact on competition is presumed, and therefore that the plaintiff is spared the burden of proving such an impact. The principal task for plaintiffs in such cases, therefore, is establishing the existence of an agreement.

In the ideal world (from plaintiffs' perspective), there would be "hard" evidence of a "formal" agreement. …

Market Power In Antitrust, George A. Hay

George A. Hay

The concept of market power is at the core of antitrust. Philosophically, antitrust policy is aimed primarily at preventing firms from achieving, retaining, or abusing market power. Operationally, assessing whether a firm or firms have market power or any reasonable prospect for achieving it is often the first (and sometimes, the only) step in performing an antitrust analysis. Few would dispute that market power should play a prominent role in antitrust analysis. Nevertheless, important questions remain. Some of these questions quite naturally focus on the precise degree of importance given to market power. Is it an essential ingredient in antitrust …

Predatory Pricing, George A. Hay

George A. Hay

No abstract provided.

The Meaning Of "Agreement" Under The Sherman Act: Thoughts From The "Facilitating Practices" Experience, George A. Hay

George A. Hay

While the Economic Policy Office was involved in a number of interesting and important matters during the six years I was Director (1973–1979), for the most part my involvement in individual investigations and cases was vicarious, i.e., supervising, supporting, and advising the staff economists assigned to the particular matter. The one major exception – a matter in which I became personally involved in an intensive way – was the General Electric (GE)-Westinghouse price signaling matter. In what follows, I provide a brief summary of what transpired in the GE-Westinghouse matter and then trace through some of the longer term consequences …

Is The Glass Half-Empty Or Half-Full?: Reflections On The Kodak Case, George A. Hay

George A. Hay

No abstract provided.

The Ftc And Pricing: Of Predation And Signaling, George A. Hay

George A. Hay

This paper summarizes and comments on two recent FTC cases. The first case involved accusations of predatory pricing against Borden, the manufacturer of ReaLemon, the dominant brand of reconstituted lemon juice. The second involved price-signaling and other so-called facilitating practices by the four makers of lead-based antiknock compounds.

The Antidumping Law: Repeal It Or Revise It, John J. Barceló Iii

John J. Barceló III

No abstract provided.

The Rule Of Reason And The Goals Of Antitrust: An Economic Approach, Roger D. Blair, D. Daniel Sokol

D. Daniel Sokol

In this paper, we discuss the problem of the rule of reason and the welfare standard in antitrust. We begin with the Introduction (Section I), which provides an overview of the problem. In Section II, we review the Supreme Court’s guidance on the standard for conducting a rule of reason analysis. Put simply, the Supreme Court has failed to identify clearly what standard to use in conducting a rule of reason inquiry. After a careful — albeit selective — reading of Supreme Court opinions it is simply not clear. While a case can be made for total welfare as the …

Standard Oil And U.S. Steel: Predation And Collusion In The Law Of Monopolization And Mergers, William H. Page

William H. Page

The Supreme Court’s 1911 decision in Standard Oil gave us embryonic versions of two foundational standards of liability under the Sherman Act: the rule of reason under Section 1 and the monopoly power/exclusionary conduct test under Section 2. But a case filed later in 1911, United States v. United States Steel Corporation, shaped the understanding of Standard Oil’s standards of liability for decades. U.S. Steel, eventually decided by the Supreme Court in 1920, upheld the 1901 merger that created "the Corporation," as U.S. Steel was known. The majority found that the efforts of the Corporation and its rivals to control …

Communication And Concerted Action, William H. Page

William H. Page

It is a familiar scenario in U.S. antitrust litigation: The plaintiffs allege that a pattern of identical pricing (or refusals to deal) is "concerted" and therefore per se illegal; the defendant responds that the practice is merely "consciously parallel" or "interdependent" and therefore legal. Under U.S. law, to avoid summary judgment or judgment as a matter of law, a plaintiff must produce a "plus factor," evidence that "tends to exclude the possibility" that the defendants' actions were merely interdependent. Courts have identified various plus factors -- for example, evidence that the alleged conduct was against the defendant's interest unless it …

State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page

William H. Page

Antitrust observers are familiar with the two-part Midcal test for the immunity of state regulation from federal antitrust laws: the state must clearly articulate its policy to displace competition and must "actively supervise" any private conduct pursuant to the policy. But state action need not meet these requirements if it is "unilateral" and therefore does not conflict with Section 1. Only if a state-authorized restraint is "hybrid," combining state and private action in a way that resembles aprohibited agreement, need the restraint satisfy Midcal. In this article, John Lopatka and Bill Page examine the history andcurrent importance of the distinction …