Antitrust - An Economic Approach

ALM Media, LLC, May 2013, Pages: 1340

Antitrust: An Economic Approach focuses on the economic reasoning behind antitrust enforcement and examines how day-to-day business decisions may affect your clients' potential antitrust liability.

The book examines antitrust from an economic perspective, covering: antitrust laws of the European Union; the Hart-Scott-Rodino premerger notification rules; takeovers and anti-takeover statutes; the standing of targets, competitors and employees who attack mergers and acquisitions; the Robinson-Patman Act; market power; vertical combinations; franchising; boycotts; and changes in the computer software and health care industries.

The analysis also features: the impact of technological trends and corporate reorganization on mergers and acquisitions; the future of antitrust law and policy in light of accelerated technological, scientific and social change; and significant developments, such as disapproval of false statement prosecutions, the importance of interlocking officers under the Clayton Act, and anticompetitive uses of employee pension and benefit plans.

PART I
Foundation of Antitrust

CHAPTER 1
The Principal United States Antitrust Laws
§1.01 The Basic Statutes
§1.02 The Antitrust Laws as an Interlocking Whole
§1.03 Political Economy and the Future of Antitrust
[1] New Challenges to Antitrust
[2] The Boom in Mergers

CHAPTER 1A
Antitrust In The Twenty-First Century
§1A.01 Expanding Focus on Purpose Rather than Literalism
§1A.02 Relevant Background
§1A.03 Re-Evaluating Antitrust Concepts
[1] Making Triple Damages Dependent on Serious Violations
[2] Challenging Use of Antitrust Where There Is No Public Benefit
§1A.04 Antitrust Objectives By Other Means
[1] Increases in Research and Development Involving Science and Technology
[2] Consumer, Business and Governmental Collaboration
§1A.05 Enhanced Application of Antitrust Doctrines With Effective Benefits
[1] Recognition of Negative Aspects of Leveraged Buyouts
[2] Enforcement Against Resale Price Maintenance (RPM)
§1A.06 Antitrust Authorities' Related Activities
[1] Expansion of Intellectual Property
[2] Avoiding Restrictions On Qualified People Who Wish To Work

CHAPTER 2
The Marketplace: Guiding Image of Antitrust
§2.01 The Open Marketplace as a Model
§2.02 Antitrust: Obsolete?
[1] Goals
[2] Changing Background
[3] Challenges to Traditional Antitrust Theories
[4] Quick Look Rule of Reason
[5] Use of Existing Law and Interpretation
[6] Markets in the New Century

PART II
Existence of Power

CHAPTER 3
Market Power
§3.01 Power Under Section 2 of the Sherman Act and Generally
§3.02 Responses To Power
[1] Power: Essential and Dangerous
[2] Economic Power
[3] Antitrust: Keeping Economic Power Constructive Rather Than Asphyxiating
[4] “Honestly Industrial“ Activities
§3.03 Relevant Antitrust Provisions
§3.04 Predatory Pricing
§3.05 Technological Innovation
§3.06 Group Monopolization
§3.07 Monopolization of the Market for One's Own Products
§3.08 Use of Leverage
§3.09 Tying Arrangements
§3.10 Intent as Evidence of Effect
§3.11 Barriers to Market Entry

CHAPTER 4
Section 7 of the Clayton Act
§4.01 The “Anti-Merger” Law
§4.02 Premerger Notification
§4.03 Joint Ventures
§4.04 Directions of Development in a Technological Economy
[1] Relevance of Quick Look Rule of Reason—Including Potential Impact on Leveraged Buyouts
[2] Importance of Internal Structure: Open or Closed?
[3] Relevance of R&D and Innovation
[4] Impact on Jobs and Employer-Employee Relationships?
§4.05 Long Range Prospects
[1] Dedication of Assets to Long Term Profitability
[2] Premerger Notification Tourniquet
[3] Public Perceptions of Insider Trading

CHAPTER 5
The Social and Economic Role of Litigation Concerning Market Power
§5.01 Introduction
§5.02 Relevance of Promotion of Alternatives
§5.03 Impact of Stress on Productivity
§5.04 Law and Economics and the Twenty-First Century
[1] Importance of Law and Economics
[2] Areas of Agreement
[3] Need for Flexibility
§5.05 Consumer Protection and Competition
[1] Antitrust Implications of Consumer Abuse
[2] Deceptions
[3] Other Sources of Distortion
[4] Procedural Obstacles
[5] Bureaucratic Obstacles to Effective Consumer Protection
[6] Opportunities for Collaboration
[7] Protection of Consumers in the Twenty-First Century

PART III
Exercise of Power

CHAPTER 6
An Overview of the Exercise of Power
§6.01 Basic Principles
[1] The Changing Political Economy of Power
[2] Economic Instability and Antitrust Policy
[3] Banking and Antitrust Objectives
[4] The Importance of Integrity in Government
[5] Limitation of Triple Damages
[6] Alternate Dispute Resolution
[7] Consumers and Antitrust Objectives
[8] Agriculture and Antitrust Law
[9] Small or New Enterprises
[10] Long-Run Challenges
§6.02 An Illustrative Example

CHAPTER 7
Horizontal Price Fixing and Allocation of Territories or Customers
§7.01 Basic Rules
§7.02 Parallel Conduct
[1] The Oligopoly Problem
[2] From Theatre Enterprises to Matsushita and the “Plus Factors“ Regime
[3] Post-Twombly Pleading Requirements

CHAPTER 8
Vertical Combinations
§8.01 Introduction
§8.02 Resale Price Maintenance
[1] Definitions of Resale Price Maintenance
[2] Basic Legal Status of RPM: Abrogation of Per Se Rule
[3] Legislative and Executive Treatment of Per Se Rule
[4] Cycles of Attitudes
[5] Historical Limitations of the Former Per Se Rule
[6] Effective Deterrence of RPM
[7] Sources of Litigation
[8] Maximum Resale Price Maintenance
[9] Criminal Prosecutions
§8.03 Customer and Territorial Restrictions
§8.04 Options and Risk

CHAPTER 9
Leverage
§9.01 The Leverage Concept
§9.02 Tying Arrangements
§9.03 Reciprocity
§9.04 Full-Line-Forcing
§9.05 Specific Contexts: Shopping Center Leases and Mobile Homes
§9.06 Requirements Contracts

CHAPTER 10
Price Discrimination Under The Robinson-Patman Act
§10.01 The Basic Prohibition
§10.02 Meeting Competition and Cost Justification Defenses
§10.03 Basis for More Expansive Construction of Defenses
§10.04 Areas for Expansion of the Cost Justification Defense
§10.05 Delivery Costs
§10.06 Long-Term Purchases
§10.07 Non-Comparability of Spot Sales with Sales for Future Delivery
§10.08 The “Bigger Box of Wheaties” Discount
§10.09 Good Faith Cost Justification
§10.10 Injury and Damage
§10.11 Buyer Liability
§10.12 Per Se Provisions
§10.13 Other Terms of Sale

CHAPTER 11
Franchising and Dealer Relationships
§11.01 Basic Principles
§11.02 Role of Sales Representatives
§11.03 Deceptive Practices and the Securities Laws
§11.04 Relevance of Dual Distribution
§11.05 The Role of Cooperative Advertising
§11.06 Exclusive Distribution
§11.07 Overview

CHAPTER 12
Interlocking Relationships
§12.01 Section 8 of the Clayton Act
§12.02 Indirect Interlocks Involving Common Suppliers, Officers or Customers

CHAPTER 13
Group Boycotts
§13.01 Basic Principles
§13.02 Professional Bodies
§13.03 Exemption Issues

CHAPTER 14
Trade Associations
§14.01 Basic Principles
§14.02 Areas of Particular Risk
§14.03 Association Safeguards
§14.04 Buyers' Associations or Combinations

CHAPTER 15
Arrangements Affecting Non-Price Terms
§15.01 Basic Factors
§15.02 The Nature of Non-Price Restrictions

CHAPTER 16
General Principles in Conduct Cases
§16.01 Conceptual Framework
§16.02 Antitrust and Warranties
§16.03 Intra-Enterprise Conspiracies

PART IV
Boundaries of Antitrust

CHAPTER 17
Commerce
§17.01 Antitrust Jurisdiction
§17.02 State Antitrust Laws and Commerce
§17.03 Extraterritorial Application of Federal Antitrust Laws
§17.04 International Responses to Antitrust Enforcement

CHAPTER 18
Government Action and Antitrust
§18.01 The Scope of Antitrust in Relation to Governmental Action
§18.02 State Authorized Private Action
§18.03 Indirect Antitrust Impact
[1] Promoting Antitrust Objectives By Other Means
[2] Vigilant Or “Dormant” Interstate Commerce Clause Restrictions
[3] Occupational Licensing
[4] Delegation Of Sovereign Governmental Power To Private Groups
[5] Appointment Clause
[6] Statutory Interpretation to Avoid Result Favoring Monopoly
[7] Regulated Industries and Regulated Activities
[8] Litigation Procedures Inimical to Competition
[9] One-to-a-Customer Legislation
[10] Legal Complexity As Anticompetitive
[11] Anticompetitive Uses Of Chapter 11 Bankruptcy
[12] Racketeering as a Monopolistic Practice
[13] Encouragement of Ability of Cash-Short Competitors to Survive
§18.04 Types of Interaction of Regulation and Antitrust
§18.05 Private Action on Government Request
§18.06 Other Public Sector Impact on Competition
§18.07 Competition Within the Public Sector
§18.08 Effects of Litigation and Political Structure on an Open Economy
[1] Effects of Litigation
[2] Specific Aspects of Antitrust Suits
[3] Judicial Approaches to Merits
[4] Acceleration or Delay
[5] Government Pronouncements
[6] Influences on Legislation
[7] Alternative Approaches to Maintaining An OpenEconomy
§18.09 Antitrust Goals and Inadequate Tenant Housing

CHAPTER 19
First Amendment Considerations and Related Issues
§19.01 Legislative and Political Advocacy
§19.02 Judicial and Administrative Advocacy
§19.03 Standing Issues

CHAPTER 20
Exemptions
§20.01 Major Express Exemptions
§20.02 Types of Exemptions

CHAPTER 21
Labor-Management Relations
§21.01 Interplay Between Antitrust Law and Labor Relations
§21.02 Types of Relationships
§21.03 Job Preservation Restrictions
§21.04 Labor Law Analogues to Antitrust
[1] Labor Law Application of Modified Antitrust Principles
[2] Antitrust Standing and Labor Law Recognition of Importance of Employment Relationships
[3] Control of Pension and Benefit Funds

CHAPTER 22
Patents, Trademarks and Antitrust
§22.01 Introduction
§22.02 The Patent-Antitrust Interface
[1] General Confluence
[2] The Federal Circuit
[3] The Patent Misuse Doctrine
[4] Convergence of Patent Misuse and Antitrust Law
[5] Demise of the Market Power Presumption
[6] Patent Fraud and Sham Litigation
[7] Reverse Payment Litigation
[8] Government Patent Statute
§22.03 The Trademark-Antitrust Interface

CHAPTER 23
Commercial Conduct
§23.01 Basic Principles
[1] The Parameters of the Antitrust Laws
[2] The Commercial Promotion of Violence and its Impact on Business
[3] The Evolution of Commercial Activities Into the Twenty-First Century
§23.02 Penumbral Applications

PART V
Enforcement and Defense

CHAPTER 24
The New Emphasis on Expedition
§24.01 The New Climate
§24.02 Tactics for Parties Seeking Expedition

CHAPTER 25
Investigation of Antitrust Issues
§25.01 Importance of Economics of the Industry and the Enterprises Involved
§25.02 Examining Witnesses
§25.03 Some Special Problems in Criminal Investigations
§25.04 Some Antitrust Aspects of Evidence
§25.05 Availability and Control of Information

CHAPTER 26
Public Enforcement
§26.01 Antitrust Division and Federal Trade Commission Duties
§26.02 Case Selection and Agency Structure
§26.03 Some Issues in Criminal Enforcement

CHAPTER 27
Issues Concerning Private Enforcement
§27.01 Affirmative Claims
§27.02 Defensive Use of Antitrust
§27.03 Related Private Claims

CHAPTER 28
Interplay of Antitrust Remedies and Substantive Law
§28.01 Types of Antitrust Remedies
§28.02 Special Role of Injunctive Enforcement

CHAPTER 29
Antitrust and Innovation
§29.01 Antitrust Vulnerability of Innovative Behavior
§29.02 The Interplay of Innovation and Antitrust
§29.03 Affirmative Promotion
§29.04 Antitrust and Technological Goals

CHAPTER 30
Antitrust Strategy
§30.01 Setting Goals
§30.02 Getting the Internally Available Facts
§30.03 Analysis of Options and Objectives
[1] Industry-Specific Challenges
[2] Manufacturing and Provision of Primary Services
[3] Distribution
[4] Banking
[5] Health Care
[6] Insurance
[7] Agriculture
[8] Automobiles
[9] High Definition Television
[10] Emerging Competition Issues in Transportation
[11] Building and Construction
[12] Education
[13] Energy
[14] Computer Software
§30.04 External Fact Analysis
§30.05 Building an Affirmative Record
§30.06 Implementation of Decisions

CHAPTER 31
Impact of Antitrust on the Economy, Business and Other Interests
§31.01 The Challenge
§31.02 Using or Defending Against Economic Analyses
§31.03 Antitrust and Inflationary Pressures
[1] Centrality of Anti-Inflation Measures
[2] Roles of Antitrust Enforcement
[3] Public Barriers to Competition
[4] Research and Development, the Banking Power, and an Open Economy
[5] Impact of Policy Changes of the Late 20th Century
[6] Balanced Budget
[7] Impact of Antitrust Decisions on Business
[8] Impact on Other Interests
§31.04 Economic Assumptions and Antitrust

APPENDICES
Index

Richard A. Givens



Mr. Givens is a former regional director of the Federal Trade Commission.

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