The US Antitrust Law and Sherman Act - Case Study Example

USA Antitrust Law and Economics Question 1: A. In this case for the past seven years the prices fixed by all the four companies who are engaged in producing roller bits were substantially uniform. There were some situations where the changes in price have been made and it was found that all those price changes were initiated by Howard. This change in price was later followed by the other four companies. The parties involved in this case are the companies and the judiciary of the respective country. The important issue in this case is that all the four companies those who are engaged in producing cross roller bits have similar pricing for their products. Howard Tool Company was the initiator in making changes in the prices and later this pricing style was followed by the other companies. Howard Tools cannot be sued in this case, because the company is acting honestly. It is not having any intention to create monopoly within the market. The company is having an added advantage that its product is more durable than the products that are manufactured by its competitors. This shows that the product is of high quality when compared to the products that are manufactured by other companies. A company is said to operate illegally when the two provisions mentioned in the act are violated. “The Sherman Act contains two main provisions. The Act makes it unlawful (1) for a group of firms to enter into contracts or conspiracies "in restraint of trade" and (2) for a single firm to "monopolize" a particular market.” (Sherman antitrust act of 1890, 2009, para.9). It is not violating any of the rules as per Sherman Act. There is no mention anywhere in the case that Howard is reducing its price to create dominance in the market. The company is reducing its price that will be beneficial for the customers. The demand for the product will not vary because of its quality aspect. It is remarked that the product manufactured by the company is highly durable. By reducing the price, the company is not wishing to become dominant players. B. The other companies are also engaged in the production of cross roller bits. These competitors reduced their prices for some months and later the prices were raised when the new comers abandoned the field. Here we can see that the company is trying to create a monopoly. “The Sherman Act, 26 Stat. 209, enacted in 1890, the Clayton Act, 38 Stat. 730, enacted in 1914, and the Robinson Patman Act, which amended the Clayton Act in 1936, all serve the purpose of protecting competition.” (Supreme Court collection, n.d., p.16). All these acts restrict competition in the market by selling the product below the cost of the competitors where the company can take advantage of the competitors and drive them out of the market. The existing company will reduce the price to restrict the entry of new companies into the market. Price fixing is an agreement which is formed by two parties who are engaged in producing same products or services within a geographical area for the purpose of raising, fixing and maintaining the prices of goods and services produced by them. Basically, there are three sections in Sherman Act. The first section deals with a particular anticompetitive conduct. The second section deals with final results that are related with the anticompetitive nature. These two sections concentrate on preventing the business from violating the rules and regulations that are framed as per the Act. Third section deals with diversifying the applicability of the terms and conditions in section 1 to the District of Columbia and also to the territories in United States. “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.” (Becker, 2004, para.2). In the case Lorain Journal v. United States, it discusses about a publishing company which tries to create monopoly in delivering the national and local news and is engaged in advertising in certain communities. A radio station emerged as a competitor for this company. The publishing company intentionally refused to accept local advertisements from those communities who give their advertisements through radio station. From this it is very clear that the company is trying to create a monopoly market and it is trying to beat its competitors. Here, the four aspects as per Sherman Act that are illegal in nature can be found. In this situation all the four aspects that are considered as illegal practice as per the Sherman Act are present. This is the situation in Howard Tool case. Here, when new companies are planning to engage in producing cross roller bits, the other five existing producers are trying to reduce their price so that they will not lose their sale. These companies are trying to create a monopoly which is against the Sherman Act. It is an anti competitive affect where the seller is intentionally lowering its price to restrict the new company which is trying to enter into their market. C. Several times, the independent companies planned to produce the cone shaped bits. This attempt was restricted by Howard Tool Company. The company instituted immediate suits for infringement of its patent for the cone shaped bits. When the company sued against the other company, it failed to notice the brand name by which the other company is trying to sell its product. What really happened was that suit filed by Howard was terminated. The product that was manufactured by the new company was sold in the market successfully. It produced the product but it was not in the name of Howard Tool Company. So, that will not affect the patent of Howard. “The franchise which the patent grants consists altogether in the right to exclude every one form making, using, or vending the thing patented, without the permission of the patentee. That is all that he obtains by the patent.” (Abbot, 2009, para.2). “The introduction of the concept that to be patentable, an invention not only had to be new and useful but also non-obvious. This charge was effected by the courts rather than by statute, notably in the Supreme Court case of Hotchkiss v. Greenwood.” (A brief history of the patent law of the United States, 2009, para.30). Howard Tool Company has already obtained patent for its roller cone bit. The company is having the right to sue the other company which is aiming to produce the same product that was patented by Howard Tool Company. But, before filing a suit against the other company it is the duty of Howard to clearly identify the product manufactured, the brand name and the logo used by it. If all these criteria are similar to the existing company, then the existing company can sue the new company stating that its patent has been copied by the other company. Otherwise, the existing company has no right to sue t the new company. D. Howard sells its cutting equipments to oil and drilling companies. The contract of sale that was provided to Howard has an option to re-purchase in the event, when the vendee sells his equipment. The equipments used by the vendees have to be returned back for the purpose of re-tipping. The company can resell the product after re-tipping or the company has an option of disposal of equipments. The large laboratory maintained within the organization is used for testing the usability and defect present in the product. As per Section 1 of Sherman act, “Every contract, combination or conspiracy in restraint of trade or commerce among the several States, or with foreign nations is declared to be illegal.” (IATA, antitrust immunity and the agency programme, n.d., p.3). In this situation, the company is not trying to force the other companies to buy its product. The company is having higher goodwill than the others. The equipment that can be used again can be re-tipped and the product that can be used for anything will be recycled and the scrap materials will be disposed. There is no intention to create any monopoly in the market. It is the decision of the company whether to use or not use the scrap. The company can go for recycling or it can supply its scrap products to other companies who are in need of them. Question 2: A. Dyco is an organization which is engaged in producing orange 100. It is mainly used for two purposes. The first thing is that it can be used for colouring the skins of the orange and the second purpose is, it is used in the manufacturing and processing of colour photographic films which is of a commercial quality. They have a competitor ‘A’, which is also engaged in producing the same product, but the price as well as the quality is low. Due to its low quality, orange 100 was used by the commercial photographers in producing and manufacturing photographic plates. It is said that there are many other products that can be used as substitutes. Dyco was facing a pricing problem and 80% of their sale has to be given to the orange growers and the company is also having many distribution channels through which the products are sold in the market. Here the company is not thinking to reduce its price and it does not want to destroy its usefulness in the market. In the case of Brooke Group v. Brown & Williamson Tobacco, the cigarette company is reducing its price, but not with the intention to create a monopoly in the market. The other company Ligget filed a suit stating that, “volume rebates by Brown & Williamson to wholesalers amounted to price discrimination that had a reasonable possibility of injuring competition in violation of 2(a) of the Clayton Act, as amended by the Robinson-Patman Act.” (U.S. supreme court: Brooke Group Ltd., 2010, para.1). In this case the court held that “the dynamic of conscious parallelism among oligopolists could not produce competitive injury in a predatory pricing setting.” (U.S. supreme court: Brooke Group Ltd., 2010, para.1). As per section 2 of Sherman Act, attempting to monopolize the market is considered as an offence that can be punishable with penalty. Here the pricing is multiple pricing. The pricing is different for same products which are manufactured by different producers. The company is not deliberately violating the provisions of Sherman Act. There is no attempt to misuse the dominant power of the company. The company is having an added advantage that it is having superior quality than the others. It is also said in the case that even though there are many brands available in the market, the photographers prefer orange 100 for manufacturing photographic plates. Therefore, any price increase or price decrease will not affect the demand for the other products and this is not creating a monopoly in the market. The company is not trying to gain the sale of the other products. So, we can say that the company is not violating the provisions mentioned in section 1 and 2 of Sherman Act, and therefore, the company cannot be punished by the court. B. Yes, the analysis will be different if Dyco’s production cost per unit of colouring potency were substantially lower than those of X, Y and Z, because the company is having price advantage when compared with its rival products. The company is reducing its cost per unit because the company is concentrating on the development of both the distribution channel and the agriculturists from whom the raw materials are acquired. The company is experiencing economies of scale in its production. Any decrease or increase in the price of the company’s product will not affect its sale or profitability. Unless it affects the other producers, it cannot be considered as an attempt to create monopoly in the market. C. The company is having a targeted group of customers who uses the product which is manufactured by Dyco. This is mainly because of its superior quality than the others. In this sense, we can say that the company is having a monopoly in the market. But, it is not trying to take over the benefits of the other companies or it is not forcing the customers to buy the product by reducing the price of its product. Question 3: In this case, it is observed that my clients, Sweet Co., following its criminal indictment by the DoJ for allegedly entering into price fixation conspiracy with two of its rivals now have to face a plethora of criminal prosecutions, from a spate of applicants, both purported class representatives and individuals seeking recompense, claiming up to three times the value of alleged overcharges made by them during the period of the conspiracy seeking recompense under Section 4 of the Clayton Act. It is necessary to consider each of these suits separately in order to provide legal counsel. First Case: Serial Parties Court Description of applicants Demand 1. Drinks Mfrs v. Sweet Co US Federal Court Major manufacturers of Soda pop and juices Alleged violation of Section 1 of Sherman Act,1890. Pursuant to S.4 of the Clayton Act, they demand three times the amount of alleged overcharge they have incurred. The first aspect that needs to be discussed is whether the actions of Sweet Co meet the requirements to be indicted under Section 1 of Sherman Act, 1890. “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” (The Sherman antitrust act (1890), n.d., para.1). However, it is necessary that every alleged insinuation of professed conspiracy meets all the requirements of Test to determine violation of Section 1 of Sherman Act. (Reiter V. Sonotone Corp., 442 U.S. 330 (1979), n.d.). Again it is seen under Section 4 of the Clayton Act that: ““Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore in any district court of the United States... without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C. 15 (emphasis added).” (U.S. supreme court: Reiter v. Sonotone Corp., 2010, para.23). The main aspect that needs to be considered is whether these manufacturers have been directly affected and have been put into detriment because of the actions of the company. The losses they need to have suffered are direct and causal losses resulting out of direct action. This was reinforced in the case of Illinois Brick v. Illinois 431 U.S. 720 (1977), in which the government could not sue the perpetrators of alleged price conspiracy since they were not affected nor directly involved. Thus, it could be said that until and unless the manufacturers could prove that they have been directly affected by the company’s actions, no recompense is perhaps possible under these laws. In the leading case of Reiter v. Sonotone, it was held that it is individuals who have been injured in business who could proceed for recovery of damages. Moreover, it is also necessary that the Four Point Test also needs to be fulfilled viz.: 1. There needs to be concerted efforts by defendants for anti-competitive results. 2. As a result of these anti-competitive efforts, its impact should be felt within concerned products and markets. 3. There should be joint efforts for achieving illegal results. 4. There needs to be specific proof that injury has been sustained as a result of joint efforts. Therefore, the main criterion for their action to sustain would be that these major manufacturers of pop and juices have been injured in their business and possibly the quantum of injury should also be forthcoming. It is only then that action could be enforceable. Second case: Serial Parties Court Description of applicants Demand 2. Consumers of SweetStuff v. Sweet Co. (District Court). Class of consumers who bought SweetStuff at supermarkets and vendors for their own use as sweetener Alleged violation of Section 1 of Sherman Act, 1890. Pursuant to S.4 of the Clayton Act, they demand three times the amount of alleged overcharge they have incurred. Here again, it is seen that the actual consumer of sweetening agents have brought action against the company. The rules of Reiter v. Sonotone would apply as would the four test theory: 1. There needs to be concerted efforts by defendants for anti-competitive results. 2. As a result of these anti-competitive efforts, its impact should be felt within concerned products and markets. 3. There should be joint efforts for achieving illegal results. 4. There needs to be specific proof that injury has been sustained as a result of joint efforts by the manufacturers. Only when all the four elements are present, could a suit be tenable. It was held in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), that “indirect purchasers such as respondents could recover treble damages for an illegal overcharge if they could prove that the overcharge was passed on to them through the intermediate distribution channels.” (Illinois Brick Co. V. Illinois, 431 U.S. 720 (1977), n.d., para.1). In this case, therefore, it would be necessary for the consumers to prove without doubt that their business or property has been adversely affected because of the price conspiracy of the company, Sweet Co. Coming to the Third case, it is as follows: Third Case: Serial Parties Court Description of applicants Demand 3. Consumers of SweetStuff v. Sweet Co. (State Court). Consumers who bought cereals, soda pop, juices and cookies at supermarkets Alleged violation of Section 1 of Sherman Act, 1890. Pursuant to S.4 of the Clayton Act, they demand three times the amount of alleged overcharge they have incurred. It is believed that this law suit has been filed by actual consumers who bought cereals, soda, etc. at supermarkets. By applying the four test method, it would be necessary to find out the quantum of damages, if any, that could be made. “Under the 'rule of reason', the conduct is only illegal, and the plaintiff can only prevail upon proving to the court that the defendants are doing substantial economic harm.” (Clayton antitrust act, 2009, p.36). The real test of the application would be whether harm has accrued to the users of these products as a result of violations, and that too on a concerted basis. In this case, there are no illegal aspects involved and also there have been no overt efforts on the part of the manufacturers to cause harm or price fixing. The company has not tried to pursue monopolistic goals nor have they tried to be anti-competitive; it is only how the various parties react to it that the court needs to consider. The actions of companies may have significant impacts, perhaps not pre-assumed or pre-determined by the company itself - there has been no genuine attempt either to enter into conspiracy or cause price wars. Yet, the company needed to have to accept the responsibility of its actions and pay off a hefty amount as fines. Question 4: In this case, there are two aspects to be considered. The first would be in terms of the apparent harm the negotiations between the representatives of the farmers have with the three large refining companies and the alleged price fixations between the two. The second aspect is the alleged price fixing between three refiners among themselves to sell the refined products. Here, the main aspect that needs to be considered is the apparent harm that the Government would be suffering because of the alleged price fixing. In the case of Associated General Contractors of California v. California State Council of Carpenters et al 459 U.S. 519, “The Union filed suit in Federal District Court, alleging that petitioner and its members, in violation of the antitrust laws, coerced certain third parties and some of petitioner's members to enter into business relationships with non-union contractors and subcontractors, and thus adversely affected the trade of certain unionized firms, thereby restraining the Union's business activities.” (Becker, 2004, para.1). Damages were claimed under Section 4 of Clayton Act. The verdict of the district court in ruling that the State was not injured by this alleged price fixing was challenged and the Court of Appeal reversed the decision of the lower court. Ultimately, when the case reached the Supreme Court of the US, the decision of the COA was reversed and it was verdicted that “the Union was not a person injured by reason of a violation of the antitrust laws within the meaning of 4 of the Clayton Act. Pp. 526-546.” (U.S. supreme court: associated general contractors v. carpenters, 2010, para.2). Moreover, it was also seen in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), antitrust laws will be more effectively enforced by concentrating full recovery for the overcharge in the direct purchasers, rather than by allowing every plaintiff potentially affected by the overcharge to sue only for the amount it could show was absorbed by it. (Illinois Brick Co. V. Illinois, 431 U.S. 720 (1977), n.d.). In this case, the main aspect to be seen is that the government has not been an aggrieved party, except perhaps the fact that the pricing fixing between the refiners themselves and also their contract with farmers may deprive them of revenues in form of taxes, etc. But the Sherman 4 test is very clear that there should be injury to the claimant/applicant for meriting any kind or recompense. In this case, the government is in no way connected, or at a loss due to this alleged price conspiracy. Hence, there is no locus standi in as far as the government is concerned. Therefore, this case would not be tenable in the eyes of law. Had the government been a losing party in this conspiracy, it could sue for recompense under Section 1 of the Sherman Act read with Section 4 of the Clayton Act. However, in another case, California v. ARC America Corp., 490 U.S. 93 (1989), the Supreme Court held that “the state statutes are pre-empted by federal law because they are clear attempts to frustrate Congress' purposes and objectives.” (California V. ARC America Corp., 490 U.S. 93 (1989), n.d., para.1). Next, it could be said that the actions of the farmers are neither anti-competitive nor seeking to monopolize trade. Their only option for business is the three refiners and it is, therefore, necessary to negotiate with them. The refiners, on the other hand are in a position to dictate terms to the farmers, and the fact that they have entered into a price conspiracy between themselves could be construed as having hints of monopolistic tendencies, albeit not of the kind that would warrant attraction of Section 4 of the Clayton Act. Moreover, the principal actor, that is the government is not directly affected which is a clear requirement underlined in Illinois case that direct detriment or affect need to be caused to the government in order to justify its claim. Moreover, it is also seen in innumerable cases before the Supreme Court, the final purveyor of justice in the US that, in the event there is a conflict between State and Federal Courts, the verdict of the Federal Courts always prevails and would overrule state laws. This has again been demonstrated in California v. ARC America Corp., 490 U.S. 93 (1989) case, in which the Court held that federal laws claim supremacy over state laws and shall take due prevalence. Moreover, in this case, it is seen that although the farmers have entered into the pricing strategy, it has been with concurrence among themselves and also with the refiners, and has been conducted in an environment of negotiability without triggering off a price war or trying to become a cartel. On the other hand, the fact that the refiners have entered into a price negotiation among themselves could be construed as a price conspiracy but whether the government has been detrimentally affected because of this remains to be seen. Thus, it is in the best interests of the government not to purse this case further since it would not be in a position of strength to contest this case successfully. Question 5: There are several aspects to this case that hint at bid rigging and certain norms that do not serve the public interest and at worse, do not benefit customers. In this case, it is seen that there are elements of antitrust activities, in that a trust has been formed, with the owners of Lever, and also that of Tide. It is, therefore, seen that since both the owners of Lever and Tide are the same, there are severe restrictions on what the customers could choose from. There is virtual monopoly of this newspaper chain on the options available to readers and advertisers. This being so, it would be well within norms of business to deem this as a monopoly, since there is a presence of monopolistic tendencies in pricing etc. Perhaps, the aspect of anti-trust would be in terms of the fact that the adverting policies of the business state that advertisements for Lever cannot be taken in isolation and need to be taken along with advertisement for Tide also. In other words, advertisers are limited in their choice of advertising and need to pay for advertisements that they do not prefer. It could, therefore, be said that Lever group is indulging in anti-trust and anti-competitive business in a large way, especially with regard to booking advertising. The fact that the business community or even consumers have to book space in other papers which do not serve any business purpose to them, could be seen as against public policy, and for which no public benefit is accruing. Further, it is also seen that the lack of public benefit does create anti-trust environment for a large section of consumers. “The worst antitrust offences are price-fixing and bid-rigging. … Such price-fixing and bid-rigging agreements, unlike joint research agreements for example, provide no plausible offsetting benefits to consumers. Also, these agreements are generally secret, and the participants mislead and defraud customers by continuing to hold themselves out as competitors despite their agreement not to compete.” (Bingaman, 1996, para.19). However, it could also be said that the dominant players do not indulge in such monopolistic business intentionally, and it could be due to the payment terms and policies of the business enterprise. Moreover, it could also be said that such advertising or pricing may be construed as anti-trust, depending upon the kind of perspective taken by the government in these matters. It may also be seen that the advertising policies pursued by Lever in league with Tide and Time could be seen as anti-trust or anti-competitive. According to section 1 of Sherman Act, it is necessary to conform to the Four Test in order to enforce whether anti-trust and anti-competitive business is being indulged in. The four tests are as follows: 1. There should be concerted efforts by the defendants to cause anti-trust, competitive or monopolistic benefits to accrue. 2. This should result in anti-competitive effects within the relevant products within a given market, in other words, it is necessary that the company should strive to seek to create and maintain monopolistic sustenance. 3. The monopolistic benefits that are being pursued are illegal and against public policy. 4. It should cause injury to the plaintiffs or consumers and should also be seen in terms of proximate result of concerted efforts. It is necessary that all these factors should be present in order for a business to be viewed as having monopolistic tendencies, or seeking to be a dominant player. It is now necessary to consider each aspect as follows: 1. Concerted efforts by defendants to gain anti-trust benefits: In this case it is seen that there is a concerted or joint efforts by Lever and its subsidiary company, Tide to dominate the market, considering that, between them, they hold 50% for the Lever, and 25% each for Tide and Time, that is the entire newspaper market are controlled by this group. This element holds good for Lever and associates. 2. It should be capable of producing anti-competitive effects. This is true in that the other businesses do not have any option except to advertise both for Lever and Tide, and cannot book their chosen ads for Lever alone, which perhaps has a higher circulation than the others. 3. The joint effect of this may be seen as illegal - while this may not really border on illegality, it is a waste of public money in advertising under compulsion. It could be seen that it does not provide any benefit and is thus against public policy. 4. Coming to the last point, it is seen that injury should be caused to the plaintiff. There is no element to show that injury has been caused, except perhaps monetary injury, which is also a kind of injury, in that prospective and potential advertisers have to pay for advertising which they do not require. Considering all the facts, it is seen that Lever does meet all the criteria that are necessary for qualifying as an anti-trust and anti-competitive company. Thee are concerted efforts, desired to provide anti-competitive effects and is illegal or against public policy. Moreover, it is also causing direct injury to plaintiff. Under such circumstances, it is seen that action could be taken against the holding company of Lever, Tide and Time for alleged anti-trust conduct. The results could be that the courts would require that major policy decisions be made that could force Lever to change its policies to include separate advertising booking for Lever and for Time and Tide. In the event this is not forthcoming, it would be possible for the State, certain individuals or class of people to file a public litigation case against the company and claim damages and violation of public rights law. Lever needs to be sensitive to these matters in that this could bring about a great deal of public disgrace and fall of image if it allows things to continue the way it has. It could also be in terms of taking proper steps to ensure that justice, equity and fair play are maintained throughout and that there is no room for public complaints for its public conduct or its advertising polices. The fact that they are dominant players who are able to dominate the proceedings is also to be considered in its right perspective. Reference List Abbot, E.H., 2009. Patents and the Sherman act. J Stor: Trusted Archives for Scholarship. [Online] Available at: http://www.jstor.org/pss/1110881 [Accessed 2 January 2010]. A brief history of the patent law of the United States, 2009. 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The Sherman antitrust act (1890), n.d. [Online] Available at: http://www.apeccp.org.tw/doc/USA/Policy/sherman.html [Accessed 2 January 2010]. U.S. supreme court: associated general contractors v. carpenters, 459 U.S. 519 (1983), 2010. Find Law: For Legal Professionals. [Online] Available at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=459&invol=519 [Accessed 2 January 2010]. U.S. supreme court: Brooke Group ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), 2010. Find Law: For Legal Professionals. [Online] Available at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=509&invol=209 [Accessed 2 January 2010]. U.S. supreme court: Reiter v. Sonotone Corp., 442 U.S. 330 (1979), 2010. Find Law: For Legal Professionals. [Online] Available at: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=442&invol=330 [Accessed 2 January 2010]. Read More