US Antitrust Law and Economics - Assignment Example

Antitrust Law in the US Assessment Answer 1: According to Section 1 of the Sherman Act each and every contract and amalgamation in the shape of a group or any other form a conspiracy which ends up resulting in restriction of business or trade amongst many States, or between foreign countries is declared to be illegitimate and illegal under the law”.   The idea in Section1 is to make a pointed reference to agreements. An express agreement, however, not required to create a contract in restraint of trade. Contracts can be implied by the conduct of the parties, so that the mere discussion of prices with a competitor taken together with parallel pricing would be a violation of the Act. From the outset, there was wide agreement that collusion led directly to monopolistic pricing and practices with no offsetting gains (Hildebrand, 2009). The Act makes no attempt to define the type of restrictive agreement, which is illegal (Pearlstein, 2006). Agreements among actual or potential competitors to divide markets or allocate customers are unlawful under Section 1. The division of territories and allocation of customers are indirect forms of output restrictions and like direct output restrictions are normally accorded the same per se treatment as price fixing given the fact that they tend to have the same anti-competitive effects [General Leaseways v National Trucks Association 744 F.2d 588, 594 (7th Cir. 1984); NCAA v Board of Regents 468 US 85, 99 (1984) (dictum)]. The Courts decided in Addyston Pipes & Steel Co. v United States, that during the decade of the Sherman Act’s enactment it was held that the result of a combination to allocate business among the participants and to increase prices was “necessarily a restraint upon interstate commerce in respect of articles manufactured by any of the parties to it”. In 1951, in Timken Roller Bearing Co v United States the Supreme Court held illegal an aggregation of trade restrictions that included among other things an allocation of trade territories and price fixing.   Another judgment that has reinforced this stance was carried out 16 years later when in United States v Sealy Inc, the Supreme Court held unlawful an arrangement in which bedding manufacturers established a jointly controlled subsidiary that adopted mattress specifications, a trade name and a trademark, and then entered  into trademark license agreements with bedding manufactures restricting each license to manufacturing and selling Sealy brand mattresses in a designated territory at fixed prices. The court stated that:   “[i]t would be violate reality to overlook the fact that the licenses held virtually all the stock in Sealy and that Sealy therefore was an instrument of the licensees aimed at allocation of territories on a horizontal basis”   The Court held that the arrangements were unlawful under s1 of the Sherman Act in the absence of the need for an investigation in each and every case regarding their business or economic explanation, their effect on the market or their rationality.   Five years later in the judgment on United States v Topco Associates, the Supreme Court explicitly held that a horizontal market division, even unaccompanied by price fixing or other restraints is per se illegal. Topco, a cooperative association of independent regional supermarket chains, was formed to behave as a buying agent aimed at the development of a private label merchandise program for its members. Each Topco member was given a license for selling trademarked Topco products only in a restricted geographical boundary, and each was more or less forbidden from selling such merchandise to other retailers. The district court, refusing to take forward the application of the per se rule, came to the decision that the geographical and the consumer based restrictions, ended up eliminating intra-brand competition in Topco products with national supermarkets. The Supreme Court rejected the rule of reason approach taken by the lower court and viewing the case as being “on all fours” with Sealy stated that “[o]ne of the classic examples of a per se violation of s1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. The Court also expressly struck down Topco’s restrictions preventing members from selling Topco’s private label goods to wholesalers, thereby treating customer allocation among competitors as well as market division, as a per se violation of section1.   The stand by the courts was reiterated in the judgment for the case of Palmer v BRG of Georgia the Supreme Court held that the market division agreements among potential, as well as actual, competitors are unlawful, stating that the Court of Appeals made a wrong decision when it started working under the assumption that an allotment of marketplace or submarkets by those in competition is illegal until and unless the market wherein the two earlier competed is divisible among the two of them. The Court stressed that market allocation agreements are anticompetitive regardless of whether the parties split a market within which both do business or whether they merely deserve one market for one another for another.   In the context of the above mentioned case therefore the idea becomes that North American Truck Leasing Association (NATLA) as an agreement is in itself illegal given the fact that there is an issue of there being firm demarcations in terms of boundaries within the business allocations that NATLA allocated. MTL was well within its rights in setting up business outside the 25 mile boundary set by NATLA. NATLA was created in order to set up and administer a reciprocal service arrangement that would enable each member to lease trucks on a full-service over-the-road basis and thus compete with the national truck-leasing companies, which have their own service depots all over the United States. Answer 2: The issue in the following case has got to do with whether or not Dyco does or does not in fact exercise monopoly power in the context of its product Orange 100. Where the origins of monopoly and the related issues are concerned, one of the most definitive cases in the context is the US v DuPont case, which is also referred to as the cellophane case. Here the government made a charge against du Pont for the monopolization of an attempt to monopolize, along with conspiring to monopolize interstate commerce in cellophane in violation of Sherman Act §2 (Blecher, 1969). Section 2 of the Sherman Act deals with the issue of monopolization of a relevant market. It states in essence that any person or persons attempting to conspire to monopolize an industry is in violation of the act. The Section makes it illegal for people to promoted the monopolization of the market by forming combinations aimed at this effect with any other person or persons to monopolize” any part of “trade or commerce” in the United States. It also states that such persons if found to be indulging in conduct abetting monopoly would be felt culpable of “a crime, and, or injunction for the same should punished through the imposition of a fine which must not in any case exceed $10, 00, 000 in case the fine is levied on a company and $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the courts”. For a relevant analysis of the market, the idea, first and foremost is that one has to consider the presence or the absence of feasible substitutes. The concise rule of law in this case clearly states that in cases where competitive substitutes are present, the market cannot be considered one characterized by monopoly. In the case, the government tried to bring in an injunction against DuPont which controlled about 75 per cent of the market for cellophane. The district court concluded that the relevant market was really flexible packaging material and that cellophane was just one of the aspects to it. The presence of numerous alternatives meant that DuPont could not affect price even though its patents and know how allowed it to dominate the cellophane industry. In the case the basic idea was that in a determination of whether a monopoly exists, it is necessary to determine the relevant market. If other economically feasible practical alternatives exist these products must be considered as part of the relevant market (Casenotes, 2004). Relevant market: The relevant market therefore in the context of Dyco’s Orange100 would be made up of two basic segments. The first segment would me the one where the use of the product is geared toward the manufacture of photo film and the second segment where the use of the product is geared toward the use of the product as a dye for oranges. Given that the primary use of Orange100 is as a dye, this would be the primary relevant market for Orange 100, which while has substitutes also is extremely susceptible to the changes that Dyco brings about in the price of its own product. In general, the broader the relevant market, the less likely it is that a firm will be found to possess monopoly power (Born, 1996). The relevant market has two dimensions: 1) the product market, which is comprised of those firms that manufacture products which consumers regard as reasonable substitutes for the monopolist’s product; and 2) the geographic market, which is the geographic area where buyers can practicably turn for alternative sources of supply [Tampa Elec Co v Nashville Coal Co., 365 U.S. 320,327-28 (1961)]. In defining monopoly as an offense under section 2 of the Sherman Act, the idea has been found to have two basic constituents. First, it is characterized by the control of monopoly power in the relevant market and the deliberate acquiring or preservation of that authority as separate from progress of the business development as a result of a product that is of better quality or cheaper costs, in the absence of business sense or historic accident. Interestingly enough in the case of United States v. E.I. du Pont De Nemours & Co., monopoly power was defined as the authority to lay control over prices in an absolute manner so that competition could be excluded. The existence of such power ordinarily may be inferred from the predominant share of the market”.  Given the fact that the primary market of Orange100 is that of the dyeing market where while there are substitutes there is also the propensity of the market prices to change positions according to the Dyco pricing strategy, the automatic idea is that Dyco has monopoly power in the market. If the cost of production for Dyco were to be lower than those of the substitutes, the idea would be that there would be an increase in the market share of Dyco in the dye market, leading to the slow extermination of the other substitutes, which would again make the situation that of a monopoly market. It must also be remembered in this context that while there have been attempts by courts to provide definitive guidelines for determining what constitutes an illegal monopoly, no such definitive statements have been forthcoming with respect to instances where single firms are attempting to monopolize (Blecher, 1969). The key threshold issue in a monopolization case is the definition of the ‘relevant market’. The relevant market has been defined as the” area of effective competition” within which the defendant operates [Tampa Elec Co v Nashville Coal Co., 365 U.S. 320,327-28 (1961)]. Answer 3: The issue in the context of this case is that of conspiracy of price fixing. Given that he courts indicted Sweet Co, and made the company pay a fine of $250 million, means that there is an obvious problem associated with the manner in which sweet co dealt with its contemporaries where the issue of price was concerned. According to section 1 of the Sherman Act, According to Section 1 of the Sherman Act each and every contract and amalgamation in the shape of a group or any other form a conspiracy which ends up resulting in restriction of business or trade amongst many States, or between foreign countries is declared to be illegitimate and illegal under the law”.   In the context of this case, the first indictment is being brought in under Section 4 of the Clayton Act, where it is stated, that, This provision creates a major inducement to sue because it means that a private plaintiff can obtain a damage award three times as large as the actual loss. Further, if the plaintiff wins, the defendant will have to pay the plaintiff's attorneys' fees. One of the primary defenses that are available to sweet Co under the aegis of the Clayton Section t exist under section 15(b) of the Act, wherein it has been stated that “any action to enforce any cause of action under section 15, 15a, or 15c of this title shall be forever barred unless commenced within four years after the cause of action accrued. No cause of action barred under existing law on the effective date of this Act shall be revived by this Act”. This would mean that in the context of the case it would become essential for the ones bringing in the injunction to prove injustice in cases over the past four years and not against the 10 years of the transactions that Sweet Co carried out with them. It would also have to proved in the context of this case whether, in the due course of the action which is the question in the context of this case there was in fact an act that stood in violation of a rule that was applicable, a statute that should have been followed or if in fact there was a court order that was disregarded, so that there is a scope for coming up with sanctions for deviant behavior. Suit 2: in the context of this particular case the question in point would have to be understood in context of the fact that there was no way that most of the allegations that have been made as part of the consumer action ill stand in court given that the burden of proof in a consumer class action is on the consumer itself. The first thing that the consumers will have to prove in the context of this case is whether or not they did in fact purchase a SweetCo product, which if they did not makes them ineligible for compensation. The first requirement would therefore be for bills within the four year period. Suit 3: The High Court in its June 9 decision in the Illinois v Illinois case sad that later lower court decisions and the legislators were emphasizing the wrong parts of the 1968 case. The important thing to remember in this case is that it would only be the ones who were direct purchasers of the price-fixed goods that would be liable to sue for damages. In the context of this case therefore the ones that had purchased the sweetener directly would be liable to bring in a suit of class action for price fixing but those that bought the products in the indirect manner through purchase of the goods that were ultimately created by the manufacturers of sweets and syrups would not be liable to bring in an injunction against SweetCo in this context.   Answer 4: The foundation or the existing, judicially-prescribed allocation of proof in merger cases is the Supreme Court’s decision in Philadelphia National Bank, where in an extremely influential passage the Court articulated the following test for the establishment of prima facie liability in a horizontal merger case, where according to them the idea behind a merger should be that it if it is able to provide the acquiring firm an undue or unjustified share of the market which would in the long run lead to uncompetitive effects then the merger must be held in violation of antitrust laws. Under this formula, the plaintiff satisfied its initial burden of proof by showing that the combined market shares of the merging forms a concentration in the relevant market both had reached specified levels. The defendant’s justifications for the transaction, aside from direct attacks on the plaintiff’s proposed market definition and calculation of market shares were to be presented as defenses to the prima facie showing of illegality. Again, while the bare terms of Philadelphia National Bank indicated that a plaintiff’s prima facie case was theoretically rebuttable, the Supreme Court’s first application of the Philadelphia National Bank case formula suggested that proof of the requisite market share and concentration statistics would be virtually conclusive in practice. The Court’s opinion in General Dynamics however rehabilitated the rebuttal opportunity by demonstrating that defendants in fact could overcome the plaintiff’s prima facie case with arguments showing the likely absence of anticompetitive effects. Subsequent lower court decisions have relied upon and given decisive effect to the defensive possibilities General Dynamics recognized. At the same time, the basic elements of the plaintiff’s prima facie case-proof of the market shares and the market concentration-have remained essentially as the Supreme Court defined them in Philadelphia National Bank. The antitrust law in the US states clearly that [Clayton Act Section 7, codified at 15 U.S.C. § 18], states that it illegal for any person or company to carry out the acquisition of in a direct or indirect manner of the entire or any portion of the supply or other share capital... of the possessions of one or more competitions that are found to be engaged in commercial activity or any such activity which has a lasting impact on commerce, where, the impact of such acquisition in terms of stocks or assets of the competitors and the usage of this very or of the stock by the voting would result in a substantial reduction in the kind or amount of competition in the relevant market leading in the long run toward the creation of a situation which is a monopoly.  Early case applying section 7 interpreted the provision to prohibit even small increases in concentration I relatively un-concentrated markets. In its first major horizontal merger decision, Brown Show and co V United States, the Supreme Court emphasized market share data and the history of increasing concentration through merger, condemning the acquisition although the companies accounted for only 5 per cent of the relevant market. The Court stated that the following factors needed to be placed under consideration in an analysis of the competitive impact of a particular transaction: The second consideration given the fact that the merger in this case is not just vertical but a horizontal merger as well, would be to consider whether the merger would substantially lessen competition or just aid monopoly in the market. The test the court sets forth in such scenarios is to view the merger in the context of its functional purpose. This is to signify whether or not the merger would take place in an industry that was concentrated or fragmented.  According to the courts, while statistics reflecting the shares of the market controlled by the industry are the primary index of market power, further examination of the market could provide the appropriate setting for judging the probable anticompetitive effects of a merger. It was also added that statistics that were reflective of the shares of the market controlled by the industry leaders and the parties to the merger are of course the primary index of market power; but only a further examination of the particular market-its structure, history and probable future-can provide the appropriate setting for judging the probably anticompetitive effect of the merger (Wise and Meyer, 1997). In the context of this case, the idea is aimed at the creation of a horizontal merger that would increase market concentration by reducing the number of market participants, which could lead to a substantial reduction in the number of competitors (Schneeman, 2009). In this case, the merger would create a single firm with substantial control over the market enabling it to raise prices unilaterally, especially given that idea is aimed at the elimination of the firm’s nearest competitor. Interestingly enough the 1992 merger Guidelines do not include the specified criteria for challenging mergers based on the level of the HHI for the post-merger market and the increase in HHI caused by the merger. The 1992 Merger Guidelines state instead that mergers that result in a post-merger HHI of less than 1,000 ordinarily require no further analysis, that mergers that increase the HHI by 100 points where the post-merger HHI is between 1000 and 1800 raise significant competitive concerns and where the post-merger HHI is greater than 1800 it will be presumed that mergers producing an increase in the HHI of more than 100 points are likely to create or enhance market power or facilitate its exercise (Blumenthal, 1996). In the above mentioned case therefore the problems with the merger exists on several levels, given the fact primarily that with the merger the two companies would come to jointly command over 55 per cent of the market, which would also then mean that they would be in a position to dictate terms where the management of problems by way of price determination is concerned. There is also the issue of the fact that with the merger the two companies will be able to effectively reduce their cost of production, giving them a strategic advantage in the market which is unfair. Answer 5: The issue in the context of this case is that of vertical price fixing, and that of arriving at a decision about whether or not there is in fact case for price fixing between the announcements and the decisions made by Durab, Allthere, and Batteron, in order to protect their dominance in the marker which would in turn protect the market from entry of new players such as Caman and Nisobat. “[A]ntitrust law limits the range of permissible inferences from ambiguous evidence in a s1 case. Thus…conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy…to survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for violation of s1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently… [a] plaintiff, in other words, must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could not have harmed.   The issue of price fixing was dealt with, first and foremost in the judgment in Addyston v Pipe where the suit in equity was instituted to enjoying the operations of cast iron pipe trust which attempted to control the prices of cast iron pipe. The petition was dismissed by the circuit Court and the Circuit Court of Appeals reversed the decree of the Circuit Court and remanded the case, with instructions to enter a decree fir the government. In the judgment the court made it clear that setting aside the rule of reasonability there would be a strict stress laid on the construction of the statute strictly, ruling that the statute’s ban on every restraint if trade condemned each combination (Woeste, 1998). Another case was the Chicago Board of Trade v. United States, 246 U.S. 231 (1918), where the Supreme Court applied the rule of reason to the internal trading rules of a commodity market. Here the court stated that, the real test of whether or not there in fact was a price fixing arrangement in place and a test of the legality of this arrangement would be made based on the whether or not the restraint that would be imposed on the market as a result of this action would be a mere regulation and thereby would promote competition or whether it is such as may suppress or even destroy competition."  What this means is simple-in the determination of the correct standard is that there must be evidence that tends to exclude the possibility of independent action by parties. That is, there must be direct or circumstantial evidence that reasonably tends to prove that [the parties] had a conscious commitment to a common scheme designed to achieve an unlawful purpose.  Under section1 of the antitrust act, the idea has been to support price fixing as a restraint of trade-bald proposition is that a rule or agreement by which men occupying positions f strength in any branch of trade fixed prices at which they would sell is an illegal restraint of trade. The true test of this restriction is whether the restraint imposed merely regulates and perhaps promotes competition or whether it is such as may suppress competition. No legal or written contract is required for this. Citing its earlier decision in First National Bank v Cities Service Co, the Court in Matsuhitam identified two inquiries as being important: 1. whether the defendant had any rational motive to join the alleged conspiracy and 2. second, whether the defendant’s conduct was “consistent with the defendant’s independent interest”. Both require a court to consider the nature of the alleged conspiracy and the practical obstacles to its implementation as well as the substantive offense being charged.   Allegations of concerted action by competitors are based on a pattern of uniform business conduct which the courts refer to as conscious parallelism [Williamson Oil Co v Phillip Morris USA, 346 F.3d 1287]. In the case of Interstate Circuit Inc v United States the Supreme Court inferred that similar restraints were sufficient evidence for a fact finder to infer agreement. In the context of this case therefore citing parallelism of action, one could file an injunction for restraint of trade through price fixing against Durab, Allthere, and Batteron, given the economic plausibility of their action and the well publicized nature of their moves that look synchronized. Reference: U. S. v. GRINNELL CORPORATION 384 U.S. 563 (1966). Retrieved December 25, 2010. Casenotes, (2004). Antitrust: Keyed to Pitofsky, Goldschmid & Wood's: Trade Regulation: Cases and Materials, Fifth Edition. Aspen Publishers Online. P9 Born, G., (1996). International civil litigation in United States courts: commentary & materials. Kluwer Law International. P513 Pearlstein, D.J., (2006). Antitrust law developments (fifth).  American Bar Association. Section of Antitrust Law. Pp338-341 Blumenthal, W., (1996). Horizontal mergers: law and policy. American Bar Association. 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