Elements of a Sherman Act § 1 claim
- An agreement
- That unreasonably restrains trade
- And has an effect on interstate commerce (toothless and no need to address)
What kinds of horizontal restraints are per se illegal and how do you know if it is?
Only NAKED restraints of trade are per se illegal.
How do you know if something is naked?
- Rule: A restraint is naked if its profitability depends on an exercise of market power (artificially constraining market output to drive up price and increase profit). – Hovenkamp Treatise
How do you know if profitability depends on market power?
Ask: (different ways of asking same question)
(1) Does this agreement make business sense for the parties even if the parties don’t reduce output and drive up price?
- Reducing output can be either qualitative or quantitative.
(2) Would this practice make business sense if the parties didn’t have market power?
- If no market power, cannot impact price (think price theory)
Is nakedness of a restraint a sufficient condition to apply per se treatment?
No. Nakedness is necessary, but not sufficient for per se treatment.
Must also:
1. Have significant judicial experience with the type of restraint at issue. – Broadcast Music Inc. AND
- But it’s not experience with the industry—it’s experience with the PRACTICE (type of restraint) – Maricopa County Medical Society
2. Not be necessary in order to create the product/network joint venture. – NCAA v. Board of Regents
- Classic network joint ventures are things involving technology standards (ex: Blueray DVDs have to use to same disc type and reader so it all works; Lamberts case involving merger of sports networks streaming service; have to have price fixing per play of songs for creation of radio stations BMI)
Be careful not to jump to the conclusion that it is a network joint venture too quickly.
- Can you create the same product/benefit without the horizontal agreement?
- Maybe franchise/franchisee?
Horizontal per se treatment of learned professionals
Learned professionals may deserve different treatment. – Professional Engineers
Professionals still subject to per se unless it’s justified by public service/ethical consideration (then it gets ROR probably) – Maricopa County Medical Society
If naked + judicial experience + not necessary for joint venture
Per se illegal full stop.
Irrebuttable presumption of anticompetitive effect. Defendant doesn’t even get to come forward with a rebuttal. It’s over.
If you have a naked restraint that is not a novel practice (courts have had expeirence) it’s going to be per se illegal – Catalano (per se rule still has bite)
You don’t need market power to get per se treatment if you have naked price fixing. – Socony Vaccum
BUT NCAA v. Alston weird argument oddly endorsed by SCOTUS that there should be a quick look to exonerate if the defendant lacks market power (hasn’t been confirmed).
What does a court do if the horizontal restraint is not subject to per se treatment?
Ask: which story is more plausible (the procompetitive one or the anticompetitive one) and then we put the initial burden on the other party.
If plaintiff’s anticompetitive story is more plausible = ROR
If defendant’s procompetitve story is more plausible = quick look
What are courts most concerned with when seeing if the restraint is pro/anti-competitive?
Output.
Enhance market output = procompetitive
Decrease market output = anticompetitive
Rule of reason & the “greater good”
We do not care if the agreement would make the world a better place. We ONLY ask whether the agreement increases or decreases competition. That’s it. – Professional Engineers
Congress says competition is good, so unless you can get an exception from Congress (see Patent Act), antitrust law doesn’t care.
Horizontal ROR: how does a plaintiff meet their burden of showing anticompetitive effect?
“This is the type of anticompetitive activity that could lead to an exercise of market power, or in other words, that an exercise of market power is plausible.
How helpful is the practice in facilitating collusion?
Market structure factors:
1. participation rate
2. market concentration
3. ease of entry
4. fungibility
5. elasticity of demand
6. exclusivity of venture
Horizontal restraint quick look.
What is it?
Court presumes unreasonableness of restraint, but instead of foreclosing defenses, it will consider them. Burden is on the defendant to come forward with a really strong procompetitive justification.
Professional Engineers is the genesis of quick look.
Horizontal ROR: How does the defendant show procompetitive benefit?
Start here for quick look.
Is there strong evidence that the challenged practice creates substantial efficiencies by reducing participant’s cost or improving product/service quality? If not, the practice is illegal.
Horizontal ROR: If D comes up with procompetitive justification, what next?
Plaintiff has the burden of showing a less restrictive alternative
- Substantially less restrictive – Alston v. NCAA
If we let a marginally less restrictive alternative create liability we are going to have a lot more liability and the courts are going to be having to micromanage how businesses should be run (we don’t want that).
Can the same efficiencies be achieved by reasonably available alternatives that have less potential to harm competition?
Micromanaging concerns
*if you can get the efficiencies from a different type of agreement (even a vertical restraint), then the horizontal restraint is more likely to be illegal — Maricopa County
- “collusion among competitors is the supreme evil of antitrust”
Horizontal ROR: What happens if Plaintiff is NOT able to show substantially less restrictive alternatives?
Balancing
Balance the competing stories.
Only get here if all the things above were shown.
“Hopefully, few cases require real balancing; but if a challenged restraint simultaneously produces opportunities for both anticompetitive practices and substantial efficiencies, a court must have a guide one way or another.
The best guide seems to be that if the threat to competition is real, and if the defendants cannot come up with a way of restructuring their venture so that this threat is substantially dissipated, the court’s only conclusion must be to condemn the arrangement.” - Hovenkamp Roadmap
GO TRY TO FIND SOMETHING BESIDES BALANCING
“Nevertheless, any court faced with the prospect of balancing must go back to step five and look hard for workable less restrictive alternatives.“
Anticompetitive & procompetitve stories of data exchanges
Anticompetitive Harms of Data Exchanges: Why are we concerned?
Data exchanges make it easier to price fix
Hard to formulate agreement without being explicit about it (helps wit this)
Helps police cheating. Easier to catch cheaters.
Procompetitive Benefits of Data Exchanges?
If I know what competitors are charging I can set prices below them and increase competition.
Data exchange ROR: Nature of information exchanged
- Frequency
More frequent = more concerning (harder to cheat. Cheating is procompetitive here) - Time period reported
Is the exchange about previous prices? Or what current/future prices? (current/future = more concerning) - Was the information exchanged was accompanied by recommendations?
Recommendations help facilitate price fixing (bad) - Was the information exchanged aggregated? Or could you tell what individual firms were doing?
Individualized = easier to police cheating (more concerning)
Todd v. Exxon – could get in groups of three so you could figure out by isolating. - Was the data publically disseminated?
Public = more procompetitive (buyers can make super informed decisions) - Direct communication? Or compiled into a data report?
Direct = more concerning
Data exchange ROR: Market structure factors
- Participation rate (what percentage of this product in the market were made by the people in the exchange)?
Bigger = more concerning - Market concentration (how many significant sellers are there in the market)
Measured in “HHI score” (sum of the squares of the percent market share) - Ease of entry into the market
Easier = less concerning - Fungibility
If not fungible, you have to account for a lot of qualitative differences (harder to pick one price).
The more fungible the product, the more concerned we are. - Elasticity of demand
The less elastic, the more worried we are (they will suck it up and pay a higher price)
- Perishability
Perishability is related to elasticity of demand. If it’s highly perishable, you can’t stockpile it when prices are low.
If it’s not perishable (and you have a stockpile), you will fall back on your stockpile when prices are high.
When can you infer an agreement from parallel conduct?
Interstate Circuit doctrine)
You can infer an agreement based on parallel conduct if:
1. You have evidence of conscious parallel conduct, AND
2. The “Super Plus Factor” that the behavior at issue would only make business sense if everyone engages in the behavior (irrational to do individually), AND
3. At least one other “plus factors” that suggest the conduct is the product of an agreement rather than independent action.
- Ologopolistic market structure (cartelizable market)
- Opportunities to conspire (rivals regularly talking to each other, trade meetings, etc.)
- Use of facilitating device (anything firms could do that could facilitate cartelization – think data exchange).
(Letter that listed all distributors names in Interstate Circuit)
Implications of interestate circuit doctrine on MTD
(Twombly)
To allege a conspiracy, you must allege conscious parallel conduct AND plus factors
To the extend that plus factors are an element to a conspiracy antitrust claim under §1, you have to plead your elements to survive a MTD… so you have to plead CPC AND plus factors.
What if you plead plus factors, but not the super plus factor?
Court hasnt really addressed, but TL thinks Twombly suggests you have not pled an agreement.
How does the interstate circuit doctrine impact summary judgment?
Normal Standard:
Is there a genuine issue of material fact so that it should be sent to the jury? Could a rational jury find in favor of the nonmovant? If not, let’s not send this thing to the jury.
Matsushita Standard (changed)
When a judge is viewing a motition for summary judgment in an antitrust case when the evidence is parallel conduct:
Plaintiff bears the burden of showing that its theory that the parallel conduct is due to an AGREEMENT is more plausible than the defendant’s theory of independent action.
- If P’s theory is more plausible = deny SJ
- If D’s theory is more plausible = grant SJ
Translation: Don’t send to jury (grant SJ) unless judge makes a threshold decision that they think it is more plausible that the parallel conduct is the product of an agreement rather than independent action.
TL Rationale: if all you had to allege was parallel conduct in order to get to trail then it would be REALLY easy to get to trial where you have trebel damages and an unpredictable jury. So people are probably just going to settle.
Can you have a § 1 violation between entities that are closely related to each other?
We are trying to avoid companies that are going in different direction (have independent centers of decision making) from going in the same direction.
- Parent + Wholly Owned Subsidiary
Cannot Conspire. (Copperweld)
Parent and wholly owned subsidiary have a complete unity of interest and common control. The subsidiary was never going its separate way. It was always going to do what the parent wanted. Any agreement is just window dressing. - Parent + Majority Owned Subsidary
Majority view = cannot conspire (but some minority disagree).
Majority means that the subsidiary can’t really do anything contrary to the parents interests. - Co-subsidiaries
Cannot conspire. Regardless of whether they are wholly or majority owned. - Franchisees + Franchisors (or co-franchisees)
CAN conspire.
Interests of a franchisee and a franchisor are NOT perfectly aligned. Same with co-franchisees. They are two centeres of economic decision making. - Individual Managers of a Single Business
Normally, no.
Unique exception = when individual managers have incentives that are different from the business’s goal.
