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Cartel Per Se Analytical Process

Cartel Per Se Analytical Process. Suspect category (price, boycott, market division)?. No. Rule of Reason - Market power? - Anticompetitive? - Procompetitive? - Purpose? - Less restrictive means? - Plus, plus. Yes. Naked restrain, blatantly anticompetitive?. Yes. No.

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Cartel Per Se Analytical Process

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  1. Cartel Per Se Analytical Process Suspect category (price, boycott, market division)? No Rule of Reason - Market power? - Anticompetitive? - Procompetitive? - Purpose? - Less restrictive means? - Plus, plus Yes Naked restrain, blatantly anticompetitive? Yes No Quick Look – Any procompetitive pluses? Yes Pass Flunk No Home Free Cooked Caution: Souter in Cal Dental: “No bright light” between per se and rule of reason. Law 552 - Antitrust - Instructor: Dwight Drake

  2. Cartel Proof Issues • Was there a meeting of the minds? • - Express agreement not required. • - Subtle accent may do job. • 2. How much evidence is required to get case to jury? • 3. How best to get the evidence? Law 552 - Antitrust - Instructor: Dwight Drake

  3. Interstate Circuit v. U.S. (1939) • Why do they call this the “rimless wheel” case? • O’Donnell put pressure on movie distributors to require 25 cent price on later runs of A movies and to not allow first run of A movies as part of double feature. What was O’Donnell’s purpose? • Only two distributors agreed in writing. According to the court, did others agree? How? • What was the impact of lack of testimony? • If this viewed as conscious parallelism, what were the “plus” factors? Law 552 - Antitrust - Instructor: Dwight Drake

  4. Theater Enterprises v. Paramount Films (1954) Basic Facts: Suit by suburban theater owner for treble damages because 1st run movie distributors limited first run movies to downtown Baltimore theaters. Who won at trial? What did Plaintiff want court to do? Is this any different than Interstate Distributors? Law 552 - Antitrust - Instructor: Dwight Drake

  5. Theater Enterprises v. Paramount Films (1954) • Holding: Evidence was sufficient to submit conspiracy issue to jury. • Conscious parallelism requires something more than uniform action. • Tacit understanding won’t do the job alone. • No direct evidence of an illegal agreement. • Distributors had good business reasons for the way they acted. Suburban theaters too small. Downtown theaters pull more. More money made in suburbs on later runs. Law 552 - Antitrust - Instructor: Dwight Drake

  6. Matsushita Electric Industrial v. Zenith Radio Corp (1986) Basic Facts: Zenith and other US TV manufacturers sued Japanese manufactures, claiming they conspired to to sell below cost in the United States in violation of Sherman Act. What was theory on how the Japanese companies could afford to do this? Why would Japanese companies want to do this? What did District Court decide? Why? What did Court of Appeals decide? Why? What was issue before Supreme Court? Law 552 - Antitrust - Instructor: Dwight Drake

  7. Matsushita Electric Industrial v. Zenith Radio Corp (1986) • Supreme Court: • What case not? • - No American antitrust regulation of what goes on in Japan. • - RCA, as competitor, can’t assert claims based on competition • injury. • RCA’s theory was based on monopoly claim. • Upheld summary judgment: • - No genuine issue of conspiracy. • - Japanese companies had been acting same way for 20 years. • - RCA and Zenith still biggest TV players. • 4. Four dissenters would have sent to jury. See 157 quote. Law 552 - Antitrust - Instructor: Dwight Drake

  8. Wood Pulp Case Before European Court of Justice (1993) Was there any questions all pulp players sold at the same price? What was mechanism to enable all to sell at same price? How did lower commission view the mechanism? What is “concertation”? Was there any concertation? How did court factor in elements of risky competition: long-term market and commercial risks to buyers and sellers. Law 552 - Antitrust - Instructor: Dwight Drake

  9. In re High Fructose Corn Syrup • No evidence of conspiracy. • Concentrated market enabled competitors to limit price competition. • Tacit agreement is not enough for Sherman Violation. • The question is whether there is enough evidence to allow jury to reject notion that defendants forswore price competition without really agreeing. • In this case, not implausible that jury could so find. Law 552 - Antitrust - Instructor: Dwight Drake

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