Definition Any agreement not to compete in one another’s territories is unlawful on – its face Topco Assoc’s Inc. Co-op making private label goods enabling member supermarkets to compete against major chains Agreement prevented members from selling Topco brand products within each other’s territories Reasoning: Antitrust laws are the Carta” of free enterprise, per se = clear “Magna notice, antitrust laws preserve economic freedom to compete CANNOT trade competition amongst members with competition between members and national chains Boycotts Concerted Refusal to Deal – Definition Agreement among competitors or market participants that they will – refuse to do business with a third party who is also involved in the market Spot the Issue: Set standards that exclude a product Illegal boycott to get higher fees illegal because sole Superior Ct. Lawyers – – purpose was to coerce an increase in price for the conspirators’ services Court will not consider the social utility of the boycott Sherman act cannot inquire into whether competition is good or bad JUSTIFICATIONS Generally is often no bright line separating from Rule of Reason analysis, since per se “[T]ere considerable inquiry into market conditions may be required before the application of any so-called condemnation is justified” (NCAA) se’ ‘per object is to see whether the experience of the market has been so clear, or “The necessarily will be, that a confident conclusion about the principal tendency of a restriction will follow from a quick (or at least quicker) look, in place of a more sedulous one” (California Dental Assn.) of a fixed price is irrelevant (Socony Vacuum) “Reasonableness” reasonableness of prices has no constancy due to the dynamic quality of the “The business underlying price structures. Those who fixed reasonable prices today would perpetuate unreasonable prices tomorrow, since those prices would not be subject to continuous administrative supervision and readjustment in light of changed conditions.” Administrative Definition of changes over time – “reasonable” Economic Markets should determine price, signals to others how to make – decisions would threaten the system of the economy” – “nervous Social value is never a justification can’t argue competition is bad Lawyers), (Professional Engineers) Agreement that creates a new product BMI v. CBS –
Definition – Any agreement not to compete in one another’s territories is unlawful on its face Topco Assoc’s Inc. Co-op making private label goods enabling member supermarkets to compete against major chains Agreement prevented members from selling Topco brand products within each other’s territories Reasoning: Antitrust laws are the “Magna Carta” of free enterprise, per se = clear notice, antitrust laws preserve economic freedom to compete CANNOT trade competition amongst members with competition between members and national chains Boycotts – Concerted Refusal to Deal Definition – Agreement among competitors or market participants that they will refuse to do business with a third party who is also involved in the market Spot the Issue: Set standards that exclude a product Superior Ct. Lawyers – Illegal boycott to get higher fees – illegal because sole purpose was to coerce an increase in price for the conspirators’ services Court will not consider the social utility of the boycott Sherman act cannot inquire into whether competition is good or bad JUSTIFICATIONS Generally “[T]ere is often no bright line separating per se from Rule of Reason analysis, since considerable inquiry into market conditions may be required before the application of any so-called ‘per se’ condemnation is justified” (NCAA) “The object is to see whether the experience of the market has been so clear, or necessarily will be, that a confident conclusion about the principal tendency of a restriction will follow from a quick (or at least quicker) look, in place of a more sedulous one” (California Dental Assn.) “Reasonableness” of a fixed price is irrelevant (Socony Vacuum) “The reasonableness of prices has no constancy due to the dynamic quality of the business underlying price structures. Those who fixed reasonable prices today would perpetuate unreasonable prices tomorrow, since those prices would not be subject to continuous administrative supervision and readjustment in light of changed conditions.” Administrative – Definition of “reasonable” changes over time Economic – Markets should determine price, signals to others how to make decisions – would threaten the “nervous system of the economy” Social value is never a justification Lawyers), can’t argue competition is bad (Professional Engineers) BMI v. CBS – Agreement that creates a new product
Antitrust%20First%20Fall%202012.docx