United States: A Primer On Antitrust Law Fundamentals

Last Updated: July 1 2015
Article by Howard Feller

I. OVERVIEW

A. Antitrust Policy

The basic objective of the antitrust laws is to eliminate practices that interfere with free competition. They are designed to promote a vigorous and competitive economy in which each business has a full opportunity to compete on the basis of price, quality, and service.

"The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions. But even were that premise open to question, the policy unequivocally laid down by the Act is competition." Northern Pacific Railway v. United States, 356 U.S. 1, 4-5 (1958).

B. The Principal Antitrust Statutes

  1. The principal federal antitrust statutes are the Sherman Act, the Federal Trade Commission Act, the Clayton Act, and the Robinson-Patman Act. The Sherman Act has particularly widespread application.
  2. The Sherman Act prohibits:
  1. Contracts, combinations, and conspiracies in restraint of trade. Sherman Act § 1 (15 U.S.C. §  1).
  2. Monopolization, attempts to monopolize, and conspiracies to monopolize. Sherman Act § 2 (15 U.S.C. § 2).
  1. Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45) contains two prohibitions:
  1. "Unfair methods of competition," which have been held to encompass not only all Sherman and Clayton Act violations, but also restraints of trade contrary to the policy or spirit of those laws. FTC v. Brown Shoe Co., 384 U.S. 316 (1966).
  2. "Unfair or deceptive acts or practices," which prohibits false or misleading advertisements or representations as well as practices which are "unfair" to consumers. FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972).
  1. The Clayton Act (including the Robinson-Patman Act amendments) declares certain specific actions or practices to be illegal:
  1. Section 2 of the Clayton Act (popularly known as the Robinson-Patman Act) declares unlawful discrimination in prices between different purchasers in the sale of a commodity, where the discrimination may lessen competition. 15 U.S.C. § 13.
  2. Section 3 of the Clayton Act prohibits exclusive dealing arrangements, tying arrangements and requirements contracts involving the sale of commodities, where the effect may be to substantially lessen competition. 15 U.S.C. § 14.
  3. Section 7 of the Clayton Act prohibits mergers, joint ventures, consolidations, or acquisitions of stock or assets where the effect may be to substantially lessen competition or tend to create a monopoly. 15 U.S.C. § 18.

C. Enforcement and Penalties

  1. The federal antitrust laws are enforced by the Antitrust Division of the Department of Justice, by the Federal Trade Commission, and by suits brought by private parties. States can be private parties for purposes of federal antitrust law. In addition, states have their own antitrust laws.
  2. The Department of Justice has responsibility for enforcement of the Sherman Act (under which it can bring criminal or civil actions and recover damages suffered by the United States Government) and the Clayton Act (under which it can obtain civil injunctions and recover damages suffered by the United States Government).
  1. Criminal violations of the Sherman Act are felonies punishable by imprisonment for up to ten years and/or fines of up to $1,000,000 for individuals and $100 million for corporations per violation. Under an alternative provision, a defendant may be fined up to twice the gross gain or twice the gross loss if any person derives pecuniary gain from the offenses or if the offense results in pecuniary loss to a person other than the defendant.
  2. Department of Justice enforcement actions, either civil or criminal, are brought in federal district courts.
  1. The Federal Trade Commission and the Antitrust Division jointly must be notified of certain proposed mergers, acquisitions, joint ventures and tender offers.
  2. The Federal Trade Commission is responsible for enforcement of the Federal Trade Commission Act and, with the Department of Justice, the Clayton Act, as well as numerous other specific statutes dealing primarily with such matters as product labeling, consumer credit, and consumer warranties.
  1. Commission enforcement proceedings are brought in an administrative setting: a trial is held before an Administrative Law Judge with a right of appeal by either the Commission staff (the Complaint Counsel) or the party sued (the Respondent) to the full Commission. Commission decisions adverse to the Respondent can be appealed to a federal court of appeals. Commission decisions adverse to the Commission's staff cannot be appealed.
  2. If the Commission determines a particular practice to be illegal, it enters a cease and desist order, which may not only require that the practice be stopped but may also require affirmative action by the violator. Violations of cease and desist orders are punishable by a civil penalty of over $13,000 per violation.
  3. The Commission also has authority to promulgate rules defining acts or practices which either are unfair or deceptive or are unfair methods of competition. Depending on the manner in which the rule was promulgated, a knowing violation of the rule may subject a party to civil penalties. 15 U.S.C. § 45 (m)(1)(A).

II. BASIC ANTITRUST CONCEPTS

A. Market Power

  1. Definition: The ability of a market participant to increase prices above levels that would be charged in a competitive market. NCAA v. Board of Regents of Univ. of Oklahoma, 468 U.S. 85, 109 n.38 (1984); Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 27 n.46 (1984).
  2. Proof of market power.
  1. Identification of relevant product market.
  2. Identification of relevant geographic market.
  3. Determination of market share in relevant markets.
  4. Conduct consistent with exercise of market power.

B. Monopoly Power

  1. Definition: "The power to control prices or exclude competition." United States v. E.I. DuPont de Nemours & Co., 351 U.S. 377, 391 (1956).
  2. Proof of monopoly power.
  1. Identification of relevant product and geographic markets.
  2. Direct evidence of the power to control price or of actual exclusion of competitors.
  3. Indirect proof of monopoly power through evidence of high market share.

(1) Exception possible for regulated industries.

(2) Low barriers to entry may counterbalance market share data.

C. "Horizontal" Agreements or Conduct

Concerted conduct is characterized as "horizontal" when it involves market participants occupying the same level in the chain of distribution. Thus, an agreement by two competing manufacturers to charge X dollars per unit for a commodity that they sell is a horizontal agreement. Similarly, an agreement by two competing suppliers to charge no greater than X dollars for a specific service they perform is a horizontal agreement.

D. "Vertical" Agreements or Conduct

An agreement between parties occupying different levels in the chain of distribution is characterized as "vertical." For example, an agreement between a manufacturer and a reseller that the reseller will not sell the manufacturer's product at less than X dollars per unit is a vertical agreement. Also, an agreement between a manufacturer and a distributor that the distributor will only sell certain equipment within a specific metropolitan area is a vertical agreement.

E. "Rule of Reason"

The "rule of reason" is the fundamental rule of antitrust analysis. The Sherman Act, despite its facial prohibition of all restraints of trade, is interpreted to prohibit only those restraints which are unreasonable. Under the rule of reason, a court weighs the pro-competitive benefits of the defendant's challenged conduct against the anticompetitive consequences of that conduct, only prohibiting conduct that, on balance, is anticompetitive. See Standard Oil Co. v. United States, 221 U.S. 1, 58-60 (1911); Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49 (1977).

F. Per Se Violations

Per se violations of the antitrust laws are carved out from the general application of the rule of reason. Judicial experience has shown that certain types of conduct are so pernicious, and so lacking in pro-competitive justification, that they are conclusively presumed to be illegal. Such conduct is held to be a per se violation of the antitrust laws. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940); Northern Pacific Railway Co. v. U.S., 356 U.S. 1 (1958).

G. A Middle Standard

Under certain circumstances, where "horizontal restraints on competition are essential if the product is to be available at all", the restraint will be analyzed under the rule of reason rather than under the per se rule. NCAA v. Board of Regents of Univ. of Oklahoma, 468 U.S. 85, 101 (1984); see also Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979).

  1. In FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986), a group of dentists conspired to withhold x-rays requested by dental insurers for evaluating benefit claims. The Supreme Court refused to invoke the per se rule by forcing the dentists' policy into the "boycott pigeonhole". The court noted that the use of the per se approach in boycott cases generally has been limited to cases in which firms with market power boycott suppliers or customers in order to discourage them from doing business with a competitor. The Court further justified the application of the rule of reason analysis because of judicial reluctance "to condemn rules adopted by professional associations as unreasonable per se, see National Society of Professional Engineers v. United States, 435 U.S. 679 (1978), and, in general, to extend per se analysis to restraints imposed in the context of business relationships where the economic impact of certain practices is not immediately obvious, see Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979)."

III. HORIZONTAL RESTRAINTS OF TRADE UNDER SECTION 1 OF THE SHERMAN ACT ___

A. "Naked" Restraints

As a general rule, "naked" restraints of trade agreed to between competitors, particularly those which tamper, even indirectly, with pricing are per se illegal. If competitors can make a clear showing that their agreement is a "market creating" mechanism that provides a product or service that could not exist absent cooperation, they may persuade a court to examine their conduct under the rule of reason.

B. Proof

Proof of a contract, combination or conspiracy is a prerequisite to establishing a violation of Section 1 of the Sherman Act. Oksanen v. Page Memorial Hospital, 945 F.2d 696, 702 (4th Cir. 1991). A combination or conspiracy is established by proof of a "a conscious commitment to a common scheme designed to achieve an unlawful objective." Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764 (1984). It is unnecessary to prove an overt, formal agreement among wrongdoers; a mere understanding can suffice. See Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc., 394 U.S. 700, 704 (1969).

  1. Conspiracy may be established by direct or circumstantial evidence. However, where defendants have no rational economic motive to conspire, and their conduct is consistent with other equally plausible explanations, an inference of conspiracy may not arise. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 596-7 (1986); Todorov v. DCH Healthcare Authority, 921 F.2d 1348, 1356 (11th Cir. 1991).
  2. The doctrine of "conscious parallelism" suggests that one or more companies may intentionally act in parallel fashion with the certain knowledge that their concurrent behavior will achieve an anticompetitive objective. Generally, this type of behavior alone is not enough to support a finding of conspiracy. Theatre Enterprises v. Paramount Film Distributing Corp., 346 U.S. 537, 540-41 (1954). However, if other factors in addition to consciously parallel action can be established, such as conduct contrary to the independent self-interest of the alleged conspirators, or opportunities for meetings among the alleged conspirators, such factors may be sufficient to permit an inference of conspiracy. See Weit v. Continental Illinois National Bank & Trust, 641 F.2d 457, 463 (7th Cir. 1981), cert. denied, 455 U.S. 988 (1982); United States v. Container Corp. of America, 393 U.S. 333, 335 (1969). In Cooper v. Forsyth County Hospital Authority, Inc., 789 F.2d 278 (4th Cir.), cert. denied, 479 U.S. 972 (1986), the Fourth Circuit Court of Appeals held that mere contacts and communications among the defendants were insufficient evidence from which a conspiracy could be inferred.

C. Per Se Violations

  1. These violations are the most common targets for criminal prosecutions, and must be avoided at all costs.
  2. Price fixing in its many forms, including express agreements on prices and bidrigging, is the most egregious of all antitrust violations. The Supreme Court has stated:

Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223 (1940).

  1. Joint efforts to increase market prices are condemned. United States v. Socony-Vacuum; FTC v. Superior Court Trial Lawyers Association, 493 U.S. 411 (1990).
  2. Agreements to establish minimum or maximum prices are also condemned. Arizona v. Maricopa County Medical Society, 457 U.S. 332, 348 (1982).
  3. Efforts to stabilize prices. United States v. Container Corp. of America, 393 U.S. 333 (1969).
  4. Agreements to establish uniform discounts or terms of sale. Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643 (1980).
  5. The price-fixing prohibition is not limited to tampering with price alone. Thus, efforts to limit output or product quality which are utilized as means to indirectly affect price have been attacked successfully, as have limitations on hours of retailer operation or other activities indirectly affecting price. See National Macaroni Manufacturers Association v. FTC, 345 F.2d 421 (7th Cir. 1965); Detroit Auto Dealers Association, Inc. v. FTC, 1992-1 Trade Cases (CCH) ¶ 69,696 (6th Cir. 1992).
  1. Agreements among competitors to divide markets or customers are illegal per se. Palmer v. BRG of Georgia, Inc., 498 U.S. 46 (1990).
  2. Concerted refusals to deal by competitors.
  1. Agreements among competitors to deny the provision of goods or services to a common buyer are illegal per se. FTC v. Superior Court Trial Lawyers Association, 493 U.S. 411 (1990).
  2. An agreement among competitors to exclude another competitor from the market or to combine with entities at another level of distribution to exclude a competitor from the market, is illegal per se. Klor's Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959); Fashion Originators' Guild v. FTC, 312 U.S. 457 (1941).
  3. Other refusals to deal for which some justification might be asserted are increasingly analyzed under the rule of reason (see Section III(E) discussion below).

D. Conduct Which Raises Concerns Over Possible Per Se Treatment

  1. Trade association activity, including membership restrictions and restrictions on advertising. California Dental Assn., 5 Trade Reg. Rep. (CCH) ¶ 24,007 (March 25, 1996).
  2. Exchanges of data, particularly price information, among market competitors. See FTC Staff Advisory Opinion from Robert F. Leibenluft, Assistant Director, Health Care Division, Bureau of Competition, Federal Trade Commission, to Kirk B. Johnson, Esq., American Medical Association (March 26, 1996).
  3. Group selling and purchasing activities.
  4. Joint ventures among competitors, including joint research and development.
  5. Standard setting and certification programs. Poindexter v. American Board of Surgery, Inc., 911 F. Supp. 1510 (N.D. Ga. 1996)

E. Emerging Limitations on Application of the Per Se

Doctrine to Horizontal Conduct

  1. Certain activities which traditionally fell within the classic per se rule have received favorable treatment from the courts in recent decades. In its analysis of a blanket license agreement among composers, the Supreme Court refused to apply a per se rule, despite the fact that the agreement literally constituted price fixing, because the agreement was essential to the creation of a market and the production of a product which would not otherwise exist. Broadcast Music, Inc. v. Columbia Broadcasting System, 441 U.S. 1 (1979); see also NCAA V. Board of Regents, 458 U.S. 85 (1985).
  2. In Northwest Wholesale Stationers, Inc. v. Pacific Stationery and Printing Co., 472 U.S. 284, 296 (1985), the Supreme Court determined that the per se rule should not be applied to the expulsion of a competitor from a purchasing cooperative because the group did not possess "market power or exclusive access to an element essential to effective competition."

F. Intra-Enterprise Conspiracy Doctrine

Intra-enterprise conspiracy refers to the legal ability of constituent parts of a single enterprise to conspire for purposes of Section 1. In Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), the Supreme Court held that a parent corporation and its wholly-owned subsidiary are incapable of conspiring as a matter of law. The Court specifically avoided the question of whether a parent and a less than wholly-owned subsidiary could conspire. Nevertheless, the Court's rationale in support of its decision sheds some light on how such a question might be resolved. Where there is "complete unity of interest" or where "there is no sudden joining of economic resources that had previously served different interests," there is unlikely to be a combination of independent competitors. Radford Community Hospital, 1990-2 Trade Cas. (CCH) ¶ 69,152 (4th Cir. 1990)(two wholly-owned subsidiaries of the same parent are incapable of conspiring for purposes of Section 1 and 2 of the Sherman Act and Section 3 of the Clayton Act). While corporate divisions and employees are incapable of conspiring with the corporation, joint venturers usually are capable of conspiring both among themselves and with the venture. Key Enterprises v. Venice Hospital, 919 F.2d 1550 (11th Cir. 1990).

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