The USA Antitrust Law - Assignment Example

USA ANTITRUST LAW Your name Course name Instructor’s name Date of submission Question One Section I of the Sherman Act on Anti Trust Legislation deals with trusts, etc,. which are in restraint of trade illegally and the penalties to be exacted. It states that all contract, combinations in the structure of trust or otherwise, or conspiracy, in limitation of trade among the states, or with foreign states, is illegal. Every individual who makes a contract or be involved in any arrangement or conspiracy hereby stated illegal shall be considered guilty of an offense against the act, and on conviction, shall be penalized by a fine not greater than $ 10,000,000 if a company, or if another person, $ 350,000, or by a prison term not greater than three years, or by both punishments, in the prudence of the court (Welch et al 2009, p.234). The agreement between NATLA and MTL affects interstate commerce and trade in that it prevents the affiliated business owners from running private businesses outside the umbrella of NAFTA. This agreement though would not significantly affect commerce as it allows its members to have their own businesses though devoid of the privileges enjoyed by NATLA membership. The judgment on substantiality or insubstantiality though is a function of the courts to determine. To establish jurisdiction, under the effects test, the putative actions of a trust agreement must pass the substantiality or adversity test San Juan Inc v Puerto Rican Cement Co. The action must also prove unreasonableness of the contract agreement. There are violations of contract that are per se unreasonable. The NATLA case particularly is unreasonable in the language of the Sherman Act in that it restricts the autonomy of traders United States v Trans Missouri Freight. (Cefrey 2003, p.167) however argued that some contracts merely restrain trade indirectly and are therefore not in contravention of the Act. However NATLA could plead reasonable business justification as it has to compete with larger business concerns and hence it is justified to protect itself. `In United States v Chicago Board of Trade, the judge listed a variety of factors to be applied in determining the rule of reason: facts atypical to the business on which the restraint is employed, record of the restraint, nature of restraint, evil supposed to exist, purpose sought to be attained and the probable or actual effects. NATLA is in the truck leasing business which is a very competitive business. The nature of the restraint employed by NATLA on its affiliate is not per se unreasonable as it offers advantages to its members which would promote their business. The nature of NATLA’s restraint is for the promotion of the business of small truck lesser and therefore is of no malicious intent on trade. Over the course of the years, the courts declared harm the variety of business practices and agreements as unreasonable without detailed investigation on the harm they cause or their business justification. For instance in United States v Northern Pacific Railway, the court ruled that the activities of the company were per se illegal due to their lack of redeeming virtue and insidious effect on competition (Cefrey 2003, p. 62) . NATLA’s activities are more likely than not to increase competition in the truck leasing industry by amalgamating the small truckers and providing better quality services. This would have the effect of making the large national truckers to increase their quality of services and efficiency and make them provide better services to the public. Arguments under the rule of reason must provide evidence that the anticompetitive effects of the contract overshadow their reasonable business justifications. However it is no grounds for a suit if the agreement does not affect the market as a whole but only an individual. The agreement is deemed unreasonable if it is detrimental to the whole market as a whole and not only to a competitor. As such only unreasonable restraints which have an adverse effect on the market as a whole are declared illegal under the rule of reason. Question Two (I) Section 2 of the Sherman Anti Trust Act of 1890 deals with the declaration of the monopolization of trade as a felony and the penalty prescribed for the offence. It states that any individual who shall monopolize or endeavor to monopolize or coalesce or scheme with any other individual or persons , to monopolize any element of the trade or commerce amongst the several states, or with foreign states, shall be considered guilty of an offense and on conviction shall be penalized by a fine not greater than $ 10,000,000 if a company or if any other individual, $ 350,000, or by incarceration of not more than three years or both punishments at the judgment of the court (Letwin 1981, p.26). Section 2 of the Sherman Act establishes three offences which are attempted monopolization, monopolization and conspiracy to monopolize. Liability under this act requires the possession of monopoly power in the relevant market and the willful maintenance or acquisition of that power as distinct from development or growth as a result of business acumen, a superior product or historical accident (Dominick 1996, p.56). Dyco would be affected in this instance in terms of its Orange 100 product where it enjoys a clear monopoly. Section 2 of the Sherman act only forbids competition which is acquired or maintained through improper means. In Standard Oil Co of New Jersey v United States, the court ruled that the company had acquired monopoly power through improper means and hence was liable to be dissolved. In United States v Alcoa the court further emphasized this when it absolved Alcoa of liability by ruling that monopoly gained through skill, foresight, innovation and business acumen does not preclude liability and hence should not be penalized. (II) Dyco having production costs which are substantially lower than its competitors would completely change the picture and its position regarding section 2 of the Sherman act. Section two of the act specifically forbids monopoly though only if acquired by improper means. If Dyco through improvements inefficiency, innovations is able to find ways to reduce its production costs, and its costs per unit of product, then it wouldn’t be in violation of the Sherman act. Whether Dyco will be in contravention of the Sherman act will depend on whether its low production costs lead to monopolistic practices. Relatively low production costs ultimately lead to low unit sales prices. This ultimately leads to increased market share and if it becomes greater than 75% of the market it would be considered a monopoly John D Park and Sons Co v Dr Miles Medical Co. Relatively low production costs may lead to predatory pricing, consequently leadimg to unfavorable market competition (Letwin 1981, p.278). In order for Dyco to avoid liability under the act it must demonstrate that its relatively low production costs pose no danger to competitive market forces. Under efficiency considerations, the firm may get a reprieve from the act if it can prove that its efficiency considerations outweigh anticompetitive effects of its low production costs Brown and Williamson Tobacco v Brook Group Ltd. It is usually hard to prove that certain advantages a producer has are beneficial to the industry, the consumer and the producer. In order for Dyco to have a viable defense in such a case it has to prove that its advantage in costs promotes free market access and competition. It also has to prove that the benefits that accrue to consumers are more than the anti competitive effects generated. In addition there is a provision in law for potential efficiencies such as introduction of new products, applying new production techniques, improvement in quality, and return on investment. These factors should also not result to substantial reduction in customer options, substantial price increases or reduction in innovation in the concerned market (Dominick 1996, p.156). If Dyco proves all these factors, it will not be liable under the act. (III) The differentials in the two scenarios bring about the issue of whether there exists a case of monopoly according to section two of the Sherman act. Section two of the Sherman act forbids attempts to monopolize, monopolies and conspiracies to monopolize. Economic theories demonstrate that demonstrate that monopolies tend to employ their power to negatively impact market forces (Letwin 1981, p.313). As the Sherman act only forbids monopolies that have been acquired through illegal means or those whose anticompetitive effects outweigh customer and industry benefits, Dyco could be excused in some aspects of this. In determination of monopoly the courts mainly focus on market share. Market shares which are greater than 75% are considered monopolistic while less than 50% market is not monopolistic (Dominick, 1996, p.212). In looking at market share the courts not only consider exactly similar products but also substitutes based on quality, price and adaptability for other purposes Qualcomm Inc v Broadcom Corp. Dyco in the first instance has similarity in products, price and adaptability of its products with the products of XYZ. Dyco having relatively similar production costs with competing companies will find it difficult to attain monopoly status unless it finds a way to improve the quality of its products. In the second scenario, Dyco has lower production costs and hence is in a position to acquire monopoly status through price reduction. Liability of Dyco under the act would depend on whether the monopoly status is achieved illegally or legally. Question three The Clayton antitrust act of 1914 was an attempt by the American congress to supplement and clarify the Sherman antitrust act of 1890. It forbids price undercutting, restricted sales agreements and interlocking directorates in companies with a capital of $1,000,000 or more in the same industry, rebates and inter stock holdings. Agricultural cooperatives and labor unions were however given exclusion from the prohibited combinations in restraint of trade. Section 4 of the Clayton act gives provision to a person who has been injured cause for action while assuming that an antitrust violation has occurred involves two stages: establishment of the fact of the damages in that the plaintiff must have suffered some substantial loss and that the damages are as a result of the violations of the trust laws and the sum of such damages. Unlike in common law, in the determination of the Sherman antitrust there is a distinction between the extent of certainty required needed to prove the reality of injury and the one required to prove the sum of damages. In Story Parchment Paper Co v Patterson Parchment Paper Co, the court ruled that although there was doubt as to the degree of the injury, but there was not any as to the reality of the injury; and there was an apparent distinction between the measures of substantiation needed to establish the jury to determine the sum (Hendrickson 2003, p.207). The rule which prevents the recovery of doubtful damages applies to such as are not the definite result of the offense, not to those damages which are not absolutely attributable to the offense and only doubtful in terms of the amount. An express agreement may be through a handshake agreement, a written agreement or a call to action which is followed by the act called for. An express agreement between Sweet Co and its rivals must be established if the suit is to be successful. Agreements inferred from conduct are actions which do not have to be proved by direct evidence or testimony. They are implied by actions which are inexplicable had they been truly independently taken. The inference of conspiracy must be more from the available evidence than the deductions of independent action. If a competitor simply decides to copy the actions of another, then the evidence is inadequate to prove agreement. Cast Iron Soil Pipe Institute. V Clamp All Corp. In order to demonstrate agreement to conspiracy the plaintiff must prove consciously parallel conduct (Hendrickson 2003, p.198). The suit against Sweet Co is likely to be on the grounds of implied conduct as the plaintiffs have only identified a single corporation. The company may avoid liability in this regard through various defenses such as non conscious parallelism of actions or copying of actions of the competitors with private self interest. The case against Sweet Co is particularly weak in that it fails to fulfill nearly all the conditions necessary for a successful suit under the Sherman act. The suit lacks co conspirators and hence would not stand the conspiracy test. The defendants bringing the suit are likely to be deemed to have very suspect motives as they only sue after Sweet Co settled a suit with another company. There is no evidence of express agreement between the companies and Sweet Co .which would make Sweet Co liable. Sweet Co could put up a strong defense on conspiracy by implied conduct by alleging copying for self interest or by unconscious parallelism. The judgment of the court is likely to go against the plaintiffs who would find it difficult to prove conspiracy by accusing only Sweet Co. Question four The main federal antitrust laws relevant to mergers are section seven of the Clayton Act, section one of the Sherman Act, and section five of the Federal Trade Commission Act. Section 7 forbids a merger the effect of which "may be considerably to reduce competition." Section 1 proscribes an agreement that represents an unfair "restraint of trade." Section five, which the Federal Trade Commission imposes, forbids "unfair techniques of competition." Over several decades, the federal courts have offered an extensive body of case law to interpret these laws within the realistic and economic background of individual cases. The chief concern of the antitrust regulations, including as they relate to mergers between competitors, is the creation or augmentation of market control (Carstensen et al 2008, p. 298). In the framework of vendors of commodities or services, "market power" may refer to the capacity to profitably sustain prices above average competitive levels for a considerable period of time. Market supremacy may be put into effect, however, not only by increasing price, but also, for instance, by reducing value or innovation. Moreover, mergers as well can create market supremacy on the buying part of a market. A good number of mergers between competitors do not generate or increase market power. Many mergers, furthermore, enable the amalgamated firm to cut its costs and grow to be more efficient, which, consequently, may result to lesser prices, superior quality goods, or investment in innovation. However, the bureaus dispute mergers that are expected to create or augment the merged firm's capacity--either unilaterally or by coordination with competitors--to exert market control. Section 2 of the rules elucidates that "concentration data and market share provide only the initial point for evaluating the competitive effect of a merger." certainly, the Agencies do not implement enforcement resolutions exclusively on the basis of concentration and market share, but both actions however play a vital role in the study. A merger in a business in which all members have low shares--usually necessitates no major investigation, because experience has shown that such mergers usually create no genuine threat to reduce competition significantly. For instance, if the merging parties are diminutive producers of a uniform product, working in a geographic region where several other manufacturers of the same uniform product also are situated, the Agencies may make conclusion that the merger possibly raises no competition fears without ever finding out the precise form of the market. By comparison, mergers happening in industries typified by high shares in no less than one probable relevant market usually need extra analysis and contemplation of factors besides market share Boeing Co v McDonnell Douglas (Megregian et al 2005, p.52). The merger of Super and GKB would give them over 55% of the market and would not cause a genuine threat to competition even though they are producers of a diminutive product in geographic region as there are several producers who can coordinate and increase the competition in the market. A horizontal merger alters a market’s structure by eliminating a competitor and merging its resources with those of the buying firm. Such a merger might alter the competitive situation in such a manner that the other firms--both the recently merged unit and its rivals--would engage in some type of coordination on output, price, capacity, or other proportions of competition (Carstensen et al 2008, p.378). The coordinated effect section of the rules addresses this possible competitive apprehension. In particular, the bureaus try to find those mergers that are expected either to augment the probability of coordination amongst firms in the applicable market when no coordination existed preceding the merger, or to augment the probability that any existent coordinated dealings among the other firms in the applicable market would be more complete, successful or sustainable. In La Farge and Blue Circle v The United States the court found that the merger would more likely constrain competition and make further coordination among other competitors harder due to their large market share. The court is likely to rule in Super and GKB’S favor as their actions would result to increased coordination amongst the newly licensed operators. Mergers may make coordination more probable or more effectual when it entails the acquirement of a firm or asset which is competitively distinctive. Firms having a greater economic motivation to depart from the terms of coordination than do most of their rivals are referred to as maverick firms. These are firms which negatively affect market forces duet to their superior attributes." If the purchased firm is a maverick, its purchase might make coordination more probable because the character and passion of competition may alter considerably as a consequence of the merger (Megregian et al 2005, p. 36). In such a situation, the bureau’s inquiry examines whether the purchased firm has acted as a maverick and if the motivations that are anticipated to direct the merged firm's conduct are likely to be dissimilar. Likewise, a merger may result to anticompetitive coordination if resources that may constrain coordination are attained by a larger incumbent. For instance, coordination could happen if, prior to the purchase, the capacity of fringe firms to increase output was enough to overcome the larger firms' endeavors to coordinate price, but the purchase would transfer an adequate amount of the fringe capacity to a main firm. The Super and GKB would likely lead to the new entity acquiring storage capacity which in the past has been used negatively by GKB in an anticompetitive manner. The new entity is more likely to engage in similar maverick activity as it has as one of its objectives to utilize the capacity of GKB and its location near to the pipeline to increase its competitiveness. Powerful buyers are frequently capable of negotiating favorable conditions with their suppliers. These terms may lead to lower price discrimination in their favor. The bureaus take into account the likelihood that influential buyers may limit the ability of other parties to get favorable prices. This may happen, for instance, if the behavior or existence of large buyers weakens coordinated effects. However, the bureaus do not assume that the existence of powerful buyers only hinders unfavorable competitive effects from the merger United States v DaVita Inc. and Gambro Healthcare, Inc. The bureaus look at the choices available to the other market participants and how those choices would likely change as a result of the merger (Castemsen et al 2008, p.305). Super and GKB’s merger would give them a greater leverage power to bid on long term contracts due to increased predictability and long term sources of supply acquired. This would negatively impact competitiveness of the other companies and thus the court would likely to rule in favor of the bureau. Question five Arguments Against Under the Sherman act there are several factors which have to be taken into account in order to prove conspiracy, combination, collusion or agreement. In this case there are a variety of factors which can be significant in building the case of the state against the suspected conspirators. For the defendants to avoid liability, they may allege the conscious parallelism or innocent copying of competitors’ actions for self interest. The fact that all the three firms increased their prices at nearly the same rates and nearly same times is not proof of collusion but it may be of conscious parallelism (Lewson 2010, p.79). Cases of conspiracy are usually built upon either express agreements, agreements within a single entity or agreements which are inferred from conduct. As the plaintiffs are unlikely to prove express agreement and agreement within a single entity is not relevant, the company is likely to sue on the basis of agreements inferred from conduct. For the plaintiffs to prove agreement inferred from conduct it is the duty of the plaintiff to prove, at the minimum conscious parallel conduct in addition to other factors referred to as plus factors. These factors include self interest served by parallel conduct, false standardization of products United States v Fire Equipment Corp., pretext grounds for action, opportunity for collusion or extensive communications between the parties. Evidence of unofficial communication among the parties is not proof of conspiracy Cowen Securities Corp v Intervest Financial Services. In the determination of whether conspiracy occurred, the court must take into account the profit motive in addition to the business logic which made the businesses to act in the particular way (Calkins et al 2004, p.321) . The three companies could plead an increase in particular costs which are relatively similar. Increase by one company is copied by other companies purely by business logic and for the profit motive. Arguments for The plaintiffs could on the other hand also put up a strong case for action against the battery manufacturers under violation of section 1 of the antitrust rules. The suit will definitely have to be in the vein of conspiracy and collusion by the dominant manufacturers in the market. Modern trends have made it the burden of the plaintiff to prove conspiracy rather than simple conjecture as it was in the past. Proof of combined action under the Sherman Act does not necessitate the existence of tangible testimony concerning an express agreement (Lewson 2010, p.23). United States v Monsato Co and Spray-Rite Service Corp Time and again, the conspiracy is not established by direct evidence but somewhat inferred from behavior that appears bizarre if the measures were in fact independent. The fact that all the manufacturers announced price increases at the same time is in itself very suspect. While it does not prove collusion as it may be as a result of competition or business logic, it is very suspect that the major players all decided to increase prices at the same time. The argument of business logic and profits only holds true to some extent. The logical happening would have been that even though there was increase in costs as alleged, it would not affect all companies equally due to issues of size and other factors such as the motivation to charge lower prices in order to acquire rival market share. United States v American Tobacco (Lewson 2010. P.65) The inference of concerted action in this case is greater than the likelihood of autonomous action making the companies liable. The plaintiffs may succeed in proving conspiracy by alleging consciously parallel conduct in addition to plus factors Potash Corp. of Saskatchewan v Blomkest Fertilizer Inc The most notable plus factor is self interest made by possible by with similar conduct. The three companies had self interests of increasing their profits but these were made possible by the announcement by Durab of increasing prices. The fact that the three companies control 90% of the market is very significant. As Nisobat and Caman did not raise prices it is very conceivable that the three companies colluded to push the two companies out of business as they were a threat to their market share. Significant Facts Of particular significance is the market share that is possessed by the three companies and their associate Elec City. That the three companies between them comprise of 90% market share is a factor that should be taken into consideration. The market power possessed by the three companies would make them more susceptible to engage in collusion in order to protect their market share. That these shares of the market have been relatively stable over the past years in itself would not constitute per se collusion but it would in more likelihood increase the likelihood of it. The fact that Nisobat and Caman did not increase costs after the announcement by the three majors to that effect is significant. If costs were to increase in an industry for three it would be assumed they would increase for all not only the majors. The explanation for this though could be differentials in production methods and differentials in production costs of the different battery types as that information has not been given. Another explanation could be that the three entrants would keep their prices down in order to acquire market share of their competitors. As costs of transporting batteries from Japan are high it would be plausible that Nisobat is highly capitalized and may be running its American enterprise at a loss. Significant information about the communications between the companies has not been given. This would have been instrumental in proving collusion. Information on the reality of cost increases which is important in verifying the claims of the three companies has also not been given. Records of changes in prices, price-change notices and corporation memoranda involving price analysis, are helpful in proving the reality of a conspiracy. Additionally, proof of competitors' meetings or telephone conversations increase the likelihood of conspiracy, and such proof usually comprise the most effectual secondary form of evidence in price-fixing cases (Lewson 2010, p.175). References Cefrey, H 2003 The Sherman Antitrust Act: Getting Big Business Under Control (America's Industrial Society in the Nineteenth Century). Rosen Publishing Group, San Francisco, California, USA. Welch, P & Gerry, F 2009 Economics Theory and Practice. Wiley, New York, USA. Dominick, T 1996 Antitrust and Monopoly: Anatomy of a Policy Failure (Independent Studies in Political Economy). Independent Institute, Boston, Massachusetts, USA. Letwin, W 1981 Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act, University of Chicago Press, Chicago, Illinois, USA. Young, A 2009 The Sherman Act and the New Antitrust Legislation, Journal of Political Economy 23(2) pp 34-39 Hendrickson, K 2003 Sherman Antitrust Act. Charles Scribner’s Sons, New York, USA. Carstensen, P & Farmer, S 2008 Competition Policy and Merger Analysis in Deregulated and Newly Competitive Industries. Edward Elgar Publishing, London, UK. Megregian, S & Jacobsen, R 2005 New government merger rules may stimulate growth and acquisition. (1992 Horizontal Merger Guidelines). California State University, Los Angeles, California, USA. Lewson, J 2010 Monopoly and Trade Restraint Cases, Including Conspiracy, Injunction, Quo Warranto, Pleading and Practice and Evidence. General Books LLC, New York, USA. Calkins, S., Kovacic, W & Gellhorn, E 2004 Antitrust Law And Economics In A Nutshell. Gale Cengage, London, UK. Read More