Anticompetitive practices in antitrust law

• Author: Elena Cristina Tudor
• Position: Faculty of Law - University of Valladolid, Spain
• Pages: 1-21

1

ANTICOMPETITIVE PRACTICES IN ANTITRUST LAW

Phd. ELENA CRISTINA TUDOR

∗

∗∗

∗)

Abstract

The federal antitrust framework is formed – excepting The Sherman Act (1890) – of The

Clayton Act (1914), The Federal Trade Commission Act (1914) and The Hard-Scott-Rodino Act

(1976). These Antitrust Laws codify what have become known as ,,per se” and ,,rule of reason”

violations of the Sherman Act.

According to the Supreme Court´s jurisprudence, a practice is an exclusionary conduct only if

it is appreciated as an ,,unreasonable” restrain, but the Court hasn’t explicitly defined this concept.

However ,,reasonableness” inquiry focuses on how a challenge business practice affects

competition. There exist two tests for demonstrate the anticompetitive characteristic of a practice:

per se test and rule of reason test. Each test helps to identify a ,,per se” violation or a ,,rule of

reason” violation. The first test is applied to the violations of Section I of the Sherman Act and the

second to the rest of them.

Jurisprudence identifies as ,,per se” violations: price fixing, agreements among competitors to

divide markets or allocate costumers, certain tying agreements and group boycotts. Under the

application of ,,per se” test, a violation is treated as being so clearly anticompetitive as to be

conclusively “unreasonable” and the plaintiff only has to demonstrate that the practice occurred.

By contrast, ,,rule of reason” test was developed to analyze all the competitive and anticompetitive

effects of the challenged conduct before the determination of ,,unreasonableness”. The “rule of

reason” violations are prohibited under the Section II of the Sherman Act.

The extensive background and experience in the U.S. Antitrust Law demonstrated that the

classification of a practice as ,,per se” or ,,rule of reason” violation wasn’t always easy to do. A

few horizontal restrains were said to be subject to an intermediate mode of analysis called the

,,quick-look” which appeared in the XX century.

Keywords: antitrust framework, Sherman Act, Clayton Act, FTC Act, Celler-Kefauver Act,

Hard-Scott-Rodino Act, exclusionary conduct, ,,per se” violation, ,,per se” test, ,,rule of reason”

violation, ,,rule of reason” test, anticompetitive effects, horizontal restrains, ,,quick-look” analysis.

Abbreviations: FTC Act – Federal Trade Commission Act

∗

Faculty of Law - University of Valladolid, Spain. E-mail: cristinat udor@hotmail.es

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I. Exclusionary conducts under the U.S. antitrust laws

Preliminary approach

U.S. is the first country in the world to recognize the importance of normal competitive

environment, and the U.S. legal system protected the positive effects of competition even before the

first law on fair competition was enacted. This is due to the fact that the benefits of competitive

environment could be easily identified in the U.S., where small businesses and small farms

represented the engine of business activity. In this context, with the view to prevent the

development of practices that could result in the prevention, restriction or distortion of competition,

the law hold that any behavior was illegal if it could be rated as "unreasonable” on the market, and

the judges had to determine in each case this particular circumstance

1)

.

In 1623, the English Parliament enacted the Statute of Monopolies, the first piece of legislation

in the world prohibiting development of anticompetitive practices leading to the creation of

monopolies and providing victims the opportunity to recover by the institution of a civil action for

damages - firstly - treble damages in consequence of violation of this rule and - secondly - double

costs

2)

.

Following the American Civil War, once the industrialization process occurred and big

companies emerged, a concern came to the fore in the US for the so-called “trust” (market

concentration operations) that allowed large companies to gain control over key industries. Senator

John Sherman took as an example the English model and argued that it was necessary to promulgate

in U.S. a law prohibiting development of any antitrust practice because

3)

. This situation led to the

enactment of the first U.S. antitrust law, called the Sherman Act. The text drew upon the Statute of

Monopolies, and under this form, monopoly in combination with other antitrust practices was

declared unlawful. It also granted victims the opportunity to request treble damages, but in contrast

with the old British model, they were not granted the right to claim double costs.

Relating to antitrust practices, it’s worth mentioning that the Sherman Act prohibits

development of antitrust practices, though it fails to mention the relevant ones. Therefore, the main

animadversion upon this law was that its vocabulary was too ambiguous.

The Sherman law provisions stand for the arteries of legal framework of antitrust law

4)

In U.S.,

doctrine also showed that this law equaled the starting point in establishing modern competition law

worldwide

5)

. The text was created in 1890 as a broad “charter of fundamental economic rights”.

The objective was to promote creation of a fair competitive environment and to remove transactions

that could break the much needed balance of an effective competitive market.

The Law is based on the idea that free interaction of competitive forces result in: an efficient

assignment of business appeals, lower prices, better quality of products and services offered on the

market while creating a favourable environment for preservation of democratic political and social

institutions

6

. This approach of the subject matters answers the generally accepted concept according

1)

Sklar, M. J., The Corporate Reconstruction of American Capit alism, 1980-1916 – The market, The Law and

Politics; University of Cambridge, Cambridge, 2004, p. 8 6 and the following

2)

Baker, D.I., Revisiting History-What have we learned about private antitrust enforcement that we rec ommend to

others?, in Loyola Consumer Law Review, EE.UU., 2004, p. 379; article available online on

http://luc.edu/law/academics/special/center/antitrust/pdfs/baker.p df.

3)

„if we will not endure a king as a pol itical power, we should not endure a king over the production,

transportation and sale of any of the necessaries of life” in Anderson, M.C., Self-regulation and league rules under the

Sherman Act, Capital University Law Review, Florida, 2001; p. 127, article available online on

http://culsnet.law.capital.edu/LawReview/BackIssues/30- 1/Anderson14.pdf.

4)

In this text I shall use the Amer ican term “antitrust” instead of the common term used in Europe, “business

competition” - firstly, to reveal the singularity of the Amer ican system a nd, secondly, because in le gal literature t his

term is used in order to make a clear distinction between t he American legal system and other competition law systems.

5)

Álvarez Zenteno, R., Una v isión de nuestro Dere cho de la compete ncia, in Revista del Abogado Nº 6, Colegio

de Abogados, Chile, 1996, p. 24.

6)

For further details, see also case Northern Pacific Railr oad Co vs. United States 356 U.S. 1 (1958).

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to which “it doesn’t matter if you win or lose, it’s how you play the game” and it completely rejects

the idea supported by Vince Lombardi that “winning is not the most important thing, it’s the only

thing”.

Although the Sherman Act was in U.S. the most important piece of legislation on competition,

its vocabulary was vague and poor. Terms such as “restrain of trade”, “combination” or

“monopolize” whose definitions did not appear in the legal text, created many practical problems,

because the courts - that enjoy in the United States absolute freedom to interpret the law - have

interpreted the legal text as they thought proper. Consequently, a wide range of court decisions with

settlements “for all tastes” was ruled - that far from clarifying the meaning of these terms -

aggravated the situation further, because the jurisprudence lines created offered casuistry solutions

that very often proved to be contradictory. This situation has led to divergent interpretations of legal

text that allowed antitrust law to turn into one of the most politicized laws in the U.S.

7)

.

In 1914 Clayton Act was enacted, the law collecting jurisprudence creation published in the late

nineteenth century and early twentieth century to close gaps in the Sherman Act. Thus, the Clayton

Act lists various anticompetitive practices, such as: discriminatory prices (Section I), exclusive

distribution agreements (Section II), acceptance agreements of additional services (Section III),

purchase of shares of companies in competition with the acquiring company (Section VII).

Thus, the new law prohibits - on the one hand - all antitrust practices which include a default

increase in the price of products and services paid by consumers and - on the other hand - all

practices carried out by economic agents that, given the current conditions, can be regarded as

anticompetitive. Clayton Act was created as a law with an economic and industrial objective

8)

.

With this law, another step forward was treaded in creating modern antitrust Law, but the

vocabulary used has been criticized for referring to competition without explaining what it was and

because, compared to the Sherman Act, it was far too rich

9)

. Consequently, courts have had to invent

criteria so as to ease implementation of the rule.

Finally, the Clayton Act stands for a civil provision as it identifies clearly legitimate people to

institute civil action, against which persons this action can be exercised and what may be claimed -

in the American case, treble damages, litigation costs and attorney’s fees.

In 1914, as well, the Federal Trade Commission Act was enacted, with the aim of prohibiting

the so-called “unfair or deceptive practices” and “unfair methods of competition”. Courts’ duty is to

interpret these precepts. Normally, it was considered unfair any practice or method fulfilling one of

the following conditions: it is contrary to federal antitrust policy

10)

, it is considered immoral or

oppressive

11)

or causes substantial damage to the consumer

12)

.

The legislator did not arbitrarily choose to use precepts that extensive. Its intention was to use

FTC Act as a complementary tool that, along with the Sherman Act and the Clayton Act, effectively

fight against antitrust practices, especially against those affecting the consumer directly. To that

effect, courts noticed that the precepts used in FTC Act make it possible to judge as antitrust

7)

Neumann, M., Competition Policy. History, Theory and Practice; Edward Elgar Publishing, Inc, Massachusetts,

2003, p. 34.

8)

See in this respect the sta ndpoint of Judge Breyer in Entrevista a Step hen Breyer, Juez de la Corte Suprema de

EE.UU., document available online at http//:www.cepchile.cl/dms/archivo_1529_866/rev80_breyer.pdf: “Entonces,

teníamos jueces que necesitaban criterios, una le y con un objetivo económico y casos en que la Corte parecía haber

perdido el rumbo: en una palabra, la oportunidad ideal para que Turner, Areeda y muchos otros que tenían formación

en economía trataran de crear estándares a partir de los elementos básicos de la teoría económica, la realidad de la

industria y los precedentes judiciales. Los quince tomos de Areeda y Turner cumplieron esa tarea y el derecho

actualmente refleja más o menos lo que ell os escribieron en sus tratado s. Uno podría decir, ¡Dios mío, qué sistema es

éste! A mí me parece que suena exactamente como un siste ma de derecho continental…”.

9)

Clayton Act, 15 U. S. C. 12 (1914).

10)

Emerson R.W., Business Law, 5th ed., Barron´s Educati onal Series, Inc., New York, 2009, p. 526.

11)

Case FTC v. Sperry&Hutchinson Trading Stamp Co.; 4 05 U.S. 233 (1972).

12)

Case E.I. DuPont de Nemours&Co. v. FTC; 927 F.2d 128, 136 (1984).

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practice any illegal practice that can not be labeled as such following enforcement of Sherman or

Clayton laws, because the legal text uses very general terms whose interpretation can be extended to

a wide variety of conducts

13)

.

Also, it’s worth mentioning two other antitrust regulations: Robinson Patman Act (1936) and

Celler-Kefauver Act (1950). These rules were especially created in order to protect small businesses

of large companies that, due to an appreciable business volume and financial capacities, obtained

from providers more advantageous economic conditions, which gave them the opportunity to

provide the same products as competitors, but at a much lower price. In this context, small

businesses could not keep up on the relevant market, because they lacked the same purchasing

power. This situation led to the enactment of the two aforementioned laws, aimed to support

preservation of a fair and effective competitive environment

14)

.

Celler-Kefauver Act amplifies the scope of Section VII of Sherman Act, relating to the business

concentrations known in the U.S. as “joint-venture”

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, while Robinson Patman Act prohibits all

providers to carry out any act of discrimination that could lead, directly or indirectly, to altering

market competition or creating a monopoly.

Regarding the Robinson-Patman Act, it should be mentioned that the courts have interpreted the

text in a particular way. It figured out that prohibited antitrust practices may affect competition

between competitors ranging at different levels of the economic chain. Case law identified in a

progressive way all these levels, as described below.

The first level is that of suppliers’. At this level, the injured party shows that it has suffered

damages because the other competing supplier offered the same products at a lower price, which

has caused loss of a large number of customers. The second level is that of buyers’. At this level,

the injured buyer argues that because its competitor bought the same products at a lower price, it

could market the same products at a much lower price. Consequently, a deviation of sales occurs in

this case. At the third level there is a bearing upon the competition legal relationship between

clients of economic agents of the second level, etc. One of the most common examples in practice is

that of price differences

16)

.

Hart-Scott-Rodino law is also relevant, as along with the enactment of this law another

progress in terms of antitrust law is thereby recorded. The law requires that any business

concentration to be notified when standards legally set are violated. For efficient operation of this

mechanism of business competition protection, the main internal control bodies were granted the

power to investigate, prohibit and/or amend the conditions under which it is claimed achievement of

notified concentration.

17)

. Authors Lizana and Pavic highlighted that, “in 1976, when Hart-Scott-

Rodino law came into force, this rule has been described as the most important progress recorded

in terms of antitrust since the approval of the Clayton law”. By regulating the process of

notification of an business concentration transaction (“premerger notification”) the system used a

posteriori for these antitrust conducts underwent substantial amendments

18)

. Earlier, it was not

compulsory to bring the concentration transaction to the notice of any antitrust control body. Unless

13)

ABA Section of Antitrust Law; FTC practice and proce dure manual, ABA, Illinois, 2007, p. 12.

14)

Díez Estella, F., Los obje tivos del Derecho an titrust, in Gaceta jurídica de la UE y de la Competencia Nº 224,

Fundación Ico, Lebrija, 2003, p. 40-41.

15)

If Section VII of Clayton Act prohibit s horizontal antitrust a greements exclusively, with the approval of the

Celler Kefauver law t here are also prohibited along with these ones vertical and conglomerate antitrust agreements (the

latter taking place between economic a gents that do not operate their business on the same dominant market). For

further details, see, Hobst, A.; Celler-Kefauver Ac t, en Encyclopedia of White-Collar & Corporate Crime, Sage

Publications, Ltd., EE.UU., 2005, p. 147 and the following.

16)

Section of Antitrust Law; Proving Antitrust Damages – Legal and Economic Issues, 2nd Ed., ABA, Illi nois,

2010, p. 275 and the following.

17)

Miller, E.L., Mergers and acquisitions: a step-by-step legal and practical guide, Willey & Sons., Inc, Boston,

2008, p. 131.

18)

Lizana, C., Pavic, L, Control Preventivo de Fusiones y Adquisiciones frente a la Legislaci ón Antimonopolios, in

Revista de Derecho, Vol. 29 – No. 3, Chile, 1990, p. 50 7 and the following.

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this operation inflicted damage upon an individual or a corporation, the injured party was not

entitled to institute legal proceedings and, in this case, federal courts analyzed the pro- or anti-

competitive character of the concentration transaction. An ex-post control of the transaction was

thus carried out. Alongside the enforcement of the Hart-Scott-Rodino law, the U.S. judicial system

introduces an important novelty - ex-ante control of a concentration transaction in breach of legal

standards.

The legal framework summarised above is not exhaustive, but illustrative. It should be pointed

out that the federal antitrust policy outlines around four rules of substantive law: Sherman Act

(1890), Clayton Act (1914), Federal Trade Commission Act (1914) and Hard-Scott-Rodino Act

(1976). Besides these laws also apply the so-called “specific statutory exceptions”, known as non-

mandatory rules under which the federal government authorizes voluntary restriction of competitive

competition in certain business sectors. There are also relevant regulations of general interest of the

Department of Justice Antitrust Division (DOJ) - one of the federal control bodies in the

competition area - known as guidelines

19)

(equivalent term in the competition field in Romania for

legal documents emanating from an administrative authority, which can take different forms -

normative legal acts (regulations, instructions or orders) or individual legal acts (decisions, orders

or opinions). We should not forget the legal rules emanating from each and any federal state, either.

Consequently, it’s worth pointing out that the U.S. consists of fifty different states, each with its

own legal rules. Normally, these are a reproduction of federal laws.

A simple analysis of U.S. Antitrust Law evolution takes out that two guardianship systems were

used in judicial practice in order to determine a conduct’s pro- or anti- trust character. The first,

called “per se”, prohibits in absolute terms implementation of specific conducts considered to have

antitrust character and the second, known as “rule of reason”, implies determining a conduct’s pro-

or anti- trust character after analyzing current circumstances for each particular case.

Hereinafter, I will try to highlight when and how the two aforementioned systems emerged,

“per se” prohibited conducts, what conducts are subject to the “rule of reason” system and which

are the most recent case law changes that took place in the U.S. in the antitrust field.

II. Analysis of antitrust practices

Rom the literal point of view, the first section of the Sherman Act

20)

prohibits any practice

meant to restrict free competition (“every contract in restraint of trade”), but the Supreme Court

19)

“Many people considered that legal acts emanating from federal c ontrol agencies in the antitrust area are one

of the most interesting aspects to be reviewed in U.S. law, as it clearly reflects progressive evolution of legal framework

in time. The main advantage of the fact that these inter nal control bodies were assigned the power to pass regulations

relating to antitrust law was to offer the existing legal framework the opportunity to quickly adapt to new business

circumstances”. Over the years, federal control bodies have specialize d in the field. Thus, the ruling of general

administrative decisions applicable to all business concentrations changed into the ruling of specific decisions, such as

decisions applicable to horizontal mergers exclusively. For example, “Herfindahl-Hirschman Index” (HHI) indicates

how to calculate the c oncentration level of market activity and under what terms a transaction is most likely to be

prohibited instead of being accepted by DOJ. For furt her details, see Lizana C., Pavic L, op. cit.; p. 519.

20)

The Sherman Act pre serves the old case law doctrine and, therefore, prohibits “unreasonable” practices

affecting free competition: § 1 Sherman Act, 15 U.S.C. § 1, “every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is

declared to be illegal. Every person who shall make any contract or engage in any com bination or conspiracy he reby

declared to be illegal shall be deemed guilty of a felo ny, and, on convictio n thereof, shall be punished by fine not

exceeding $10,000,000 if a corporati on, or, if any other pe rson, $350,000, or by imprisonment not exceeding three

years, or by both said punishments, in the discretion of the court”. It is important to note that any person developing a

practice prohibited under thi s section is guilty of a conduct classified as felony. This term is used in the U.S. to define a

crime involving a much hi gher social risk than the so-called “misdemeanor”. In conclusion, development of a similar

practice is judged as “crime”. In the U.S., any illegal conduct punished by i mprisonment not exceeding one year i s

classified as offense, and any behavior punished by imprisonment exceeding one year is classified as crime. A very

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construes the text in the sense that it should apply so as to prohibit only those practices deemed

“unreasonable”, failing to define what should be understood by “unreasonable practice”. With the

view to fill this gap, legal literature interpreted the concept as referring to any practice substantially

affecting free competition. This standpoint was accepted by the Supreme Court, which created two

rules designed to assess the degree of danger to free competition through the development of any

antitrust practice prohibited under the Sherman Act. These methods are: “per se rule” and “rule of

reason”

21)

.

Section II of the Sherman Act condemns any person who monopolized or attempted to

monopolize any part of the trade or commerce, thus affecting free competition between different

federal states or between these and foreign ones

22)

. Sanctions applied to persons violating provisions

of section hereby are the same as those applied in Section I. Section II deals with two issues. Firstly,

with monopolization, which in spite of literal writing of text that seems to sanction the mere

similar s ystem was applied over time in European countries, as well, among which France, Italy, Spain, Belgium or

Romania.

Case law highlighted how shaded t he criterion of implementing this section is, in case of practices worthy of

double sanctions: by fine and imprisonment. T his is, for example, the cas e of concerted practices which c arry forth a

much greater threat to society when compared with unilateral actions. In terms of concerted practices, the Supreme

Court set f orth that these shall always be punished twic e because there is no doubt that the y entail more serious social

danger.

Section I of the Sherman Act applies to a ntitrust practices, such as: agreements obstructing free price fixing (this

includes both horizontal price fixing agreements, and vertic al, such as agreements that lead directly or indirectl y to

resale price fixing), the conclusion of contracts subject to acceptance by parties of supplementary obligations which, by

their nature or acc ording to commercial usage, are not related to the subject matter of such contracts, boycotts, division

of sales market on territorial criterion, sales and purchase volume or ot her criteria, etc. These practices were deemed

prohibited “per se” practices. It should be noted that, as shall be set out elsewhere in the article, this c riterion underwent

various amendments, worthy to be acknowledged.

In order to make a bri ef history of t he emergence and evol ution of antitrust pra ctices condemned as illegal under

Section I of the Sherman Act, the following should be specified. Foremost, the first antitrust practices which were found

in the U. S. in the eighteent h century in danger of being sanctioned were the so-called trust (currently known as cartel

cases). This situation constrained econo mic agents to invent other types of antitrust practices. Consequently, a new type

of antitrust practice occurred in New Jersey, which w as called “merger”. This figure ca me up with the incorporation of

a big company following conclusion of a merger agreement by various companies carrying out their business on the

same relevant market. Since the federal Governme nt failed to prevent implementation of this new practice, it opened the

door to a whole series of mergers created throughout the nineteenth century. In 190 3, the Supreme Court responded and

dissolved t he Northern Securi ties Company, which was to be f ormed through the merger of two railr oad companies.

The final ruling passed in this case, Northern Securities Co. v. United States, 193 U.S. 197 (1904) marked a new stage

in the implementation of antitrust law, because it fina lly ended the attitude of “laissez-faire” adopted by the federal

Government until that date.

Subsequent regulations approved in terms of antitrust law do not amend the general criteria set forth under the

Sherman Act, they just fill the existing gaps by listing various emerging practices that are dee med antitrust by applying

the rule “per se” or the “rule of reason”, as shall be pointed out below.

For this purpose, see: Neumann, M., Competition Policy. History, Theory and Practice, Edward Elgar Publishing,

Inc, Massachusetts, 2003; Anders on, M.C.; Self-regulation and league rules under the Sherman Act, in Capital

University Law Review, Florida, 2001; document available online on http://culsnet.law.

capital.edu/LawReview/BackIssues/30-1/Anderson14.pdf.; Foer, A.A. y Lande, R.H., The Evolution of United States

Antitrust Law: The past, present and future; American Antitrust Institute, EE.UU, 1999, article available online on

http://www.antitrustinstitute.org/files/64.pdf.; Álvarez Zenteno, R., Una visión de nuestro Derecho de la competencia;

in Revista del Abogado Nº 6; C olegio de Abogados, Chile, 1996; Rubin, J.E.; General Overview of United States

Antitrust Law; ed. por Library of Congress - Congressional Research Service, EE.UU., 2001; article available online on

http://www.competitionlaw.cn/upload/temp_05062801031227. pdf. or E ntrevista a Stephen Breyer, Juez del T.S.,

available online on http://www.cepchile.cl/dms/archivo_1529_ 866/rev80_breyer.pdf.

21)

Harley J.E., The rule of reason; American Bar Associati on, Illinois, 1999, p. 1 and the following.

22)

,,Every per son who shall monopolize, or attempt to mon opolize, or combine or conspire with any othe r person

or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be

deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a

corporation, or, if any other person, $350,0 00, or by imprisonment not exceeding three years, or by both said

punishments, in the discretion of the court”. § 2 Sherman A ct, 15 U.S.C. § 2.

7

existence of monopoly, actually refers to the development - by the company holding this exclusive

privilege - of practices aimed at maintaining and reforming its position. Secondly, the text sanctions

all practices developed by way of taking monopoly power.

Whether a practice is considered as “per se” or “rule of reason” antitrust, case law has

established that for each particular case there should be examined: whether the person accused

actually committed the antitrust crime (in this case it is sufficient that the aggrieved party presents

the court an agreement or any other irrefutable evidence that tends to exclude the possibility that the

parties concerned have acted independently on the affected market), if the conduct developed affects

free competition between the different federal states or between these ones and other foreign states

(for it must be proved that the antitrust practice affects free competition under the aforementioned

conditions. Excluded are: a) antitrust practices affecting free competition in a single federal state -

because in this case domestic law of the relevant state is applicable, and not federal law and b)

antitrust practices which, although affecting international relevant market, do not affect - directly or

indirectly - any economic sector in the U.S.) and whether the conduct or practice developed can be

regarded as irrational (in the latter case there were always applied the two previously mentioned

rules -, “per se rule” and “rule of reason”).

Generally, legal literature writes down the application of the rule “per se” as a decision in favor

of the aggrieved party, while application of the “rule of reason” was accounted as a decision in

favor of the defendant.

23)

, on the grounds put forward hereinafter.

In 1897, Judge Taft of the Sixth District of the Court of Appeals wrote an article exhibiting his

standpoint on the Sherman Act. He asserted that construing legal text equals for a judge to having

set “sail on the sea of doubt”. Taft argued that it was deemed necessary to establish an interpretive

model to provide an effective solution and allow passing a court decision grounded on little more

than the opinions of a judge. One year later, in case US vs. Addyston Pipe and Steel Company

24)

,

Taft offered a solution for analyzing cases of monopoly which, although on a first impulse seemed

abusive, no one hesitated to consider it effective. This solution was later called the “per se” rule.

23)

Beschle, D.L.; What, Never? Well, Hardly Ever: Strict Antitrust Scrutiny as an Alternative to Amo ng

Competitors, Antitrust L.J.,,1989, p. 433 and the following.

24)

In case Addyston Pipe and Steel Company, six companies manufacturing cast-iron pipes have joined their

efforts in a cartel, consequently dividing the sales market of the product on territorial criteria and fixing the sell ing price

of products merchandised in the U.S. Thus, whenever t he parties involved in the cartel were participati ng in an open

tender to awa rd a public cont ract, the six companies submitted offers so that the company in whose territory the work

had to be carrie d out would always win the a uction, under the terms set out in the cartel; thence, t he public

administration instituted l egal proceedings. The first s entence was appealed. The Court of Appeal judged t he corporate

conduct as antitrust practice whose implementation could be tolerated only if it was ancillary and not primarily, as in

this particular case. Moreover, even if ancillary, development of this practice was absolutely necessary in order to

protect a legitimate intere st or to avoid the occurrence of other more serious effects than the ones expected to occur

following development of anti trust practice under review. Thirdly, the Court argued that in this case there was no d oubt

referring to the objective of t he companies involved in the development of antitru st practice, which was none other than

to restrain free competition on the affected market. Also, there was f iled an appeal against this decision, though failing

to attack the standpoint of the Court of Appeal. The appeal was grounded on the fact that, in accordance with the

Commerce Clause in the U.S. Constitution, review by the federal courts of any type of private contract was not all owed

, but only of those affecting trade between different Member States of the U.S. federation. Judge Peckham of the

Supreme Court passed a new ruling, arguing that the substantiation of the recurring party lacks any base, since the cartel

also fixed the selling prices of products offered in different Member States. These prices were assessed as unrea sonable,

as it was shown that charging 1 7-18 U.S. dollars per ton of iron granted companies reason able gainings, which is why it

was unreasonable to charge 24-25 U.S. dollars per ton of ir on. In addition, the court decision highlights the fact that

there are situations in which simple private a greements can cause an economic impact that, in a direct manner, may

affect trade between different Member States of the federation, and these agreements are therefore unacceptable.

Moreover, the cartel exec uted could not be c onsidered a simple private agreement concluded in accordance with the

Commerce Clause set out in the Constitution, becau se this clause - that guarantees freedom of will of contracting parties

- does not touch absolute freedom, but the freedom to do only what is allowed under the law (The liberty of contract in

such case would be nothing more than t he liberty of doing that which would result in the regulation). In conclu sion, this

article can not be applied to any antitrust practice. Case 1 75 U.S. 211 (1899).

8

After a short period of time, the Supreme Court confirmed this interpretative model and

optimized it in that it identified the existence of certain practices that, due to their pernicious effect

on free competition, could be considered without the slightest doubt as antitrust practices.

Therefore, the Supreme Court judged that, as far as these conducts were concerned, it was not

necessary to perform a close-up so as to determine their antitrust character, more than that, these

practices could be directly judged by the court as antitrust practices, without examining the effects

entailed by them on the relevant market of the affected product or service. Consequently, from that

point on, it was well understood that horizontal restrictive agreements (such as those incidental in

price fixing directly or indirectly or in dividing markets on grounds of territorial criteria or in

allocating customers, sales and acquisitions volume etc.) should have been considered prohibited

“per se” antitrust practices. As regards vertical restrictive agreements, there were considered as

prohibited “per se” all practices substantially affecting free competition, while all the other form the

scope of the “rule of reason”.

25)

. Thus, it was established that “per se” rule is applicable to vertical

restrictive agreements that, directly or indirectly, cause price increases (“price vertical restrains”)

whenever: a) it is argued that the defendant enjoys market power needed in order to affect free

competition by way of practice developed and whenever b) the existence of a coercive element is

proven

26)

. There should be also noted that there are excluded from the enforcement of the rule “per

se” all other denominated vertical practices, “non-price vertical restrains” subject to the “rule of

reason”.

27)

.

The rule “per se” is the most severe model of analysis that a federal court may apply in order to

check if the practice carried out by an individual or a corporation has an antitrust character and, in

European law, this model is equivalent to a presumption - juris et de jure - according to which a

practice is always deemed as antitrust. Therefore, case law indicated as taxative cases where “per

se” rule is applicable, while in crowded situations a legal debate shall be held with the view to

establish the rule applicable to the case sub judice. Once a federal court rules that “per se” rule is

applicable, the only valid defense is to prove that the defendant is not the person having carried out

the antitrust practice. In conclusion, the court will not take into account any other argument such as

the fact that prices paid by the consumers are reasonable, that the parties do not enjoy enough power

on the market so that the practice developed affects free competition or that this conduct is

beneficial to consumers. Excluded from this form are all the other arguments that the companies

carrying out the antitrust practice could bring to defend themselves. Thus, a ruling is passed

reducing costs to a maximum.

25)

Aspen Law Center; Health Care Antitrust; Aspen P ublication, Maryland, 1998, p. 11 and the following

26)

See court decision FTC v. Indiana Fed´s of Dentists, 476 U.S. 447, 458 (1986) - boycott; ruli ng Northwest

Wholesale Stationers, 472 U.S. 295-298 – boycott; ruling Jefferson Parish Hosp. Dist. Nº2 v. Hyde, 466 U.S. 2, 15-18

(1984) - the conclusion of agreements subject to acceptance of supplementary obligations w hich, by their nature or

according to commercial usage, ha ve no connection with the subject matter of such agreements; court decision PSI

Repair Serv. V. Honeywell Inc ., 104 F. 3

rd

811-815 (1995) where federal courts concluded that between the known “per

se” and “rule of reason” ther e is n o clearly deter mined border. Therefore, it is not difficult to a scertain that the two

systems merge and, consequentl y, certain c onditions are r equired to be met for an antitrust practice to be considered

prohibited “per se”. Onl y if these conditions are met a Court can be persuaded that a c onduct deserves to be sanctioned

without analyzing in detail its pro- and anti- trust effects. F or further details, see Jacobson, J.M. in Antitrust Law

Developments, 6

th

ed.; Vol. I; ABA Book Pu blishing, Illinois, 2007, p. 48 and the followin g, where it is ar gued, in the

first place, that “per se rule” and “rule of reason” are not two s ystems that exclude each other and, secondly, that it is

not mandatory for an antitrust practice to fall automatically into one of the two categories. There can be crowded

situations where, in case of a practice generally prohibited as “per se” antitrust, there can be provided sufficient

arguments t o demonstrate that it would be more appropriate to consider otherwise. The t ext of this article sets forth

some cases that can serve as an example.

27)

See court decision Continental T.V., Inc. v. GTE Sylvani a Inc., 433 U.S. 36(1977).

9

The second court decision important in the field of antitrust law was passed in 1911, in the case

Standard Oil Co. of New Jersey vs. United States

28)

, when the “rule of reason” was created. It

should be noted that, as previously mentioned, this rule can only apply to restrictive ancillary

practices, because all the other antitrust practices are directly judged as prohibited “per se” antitrust

practices.

29)

.

In relation to the effects entailed by an antitrust practice, it’s worth mentioning that, in

comparison with practices deemed “per se” antitrust, in case of conducts subject to the “rule of

reason” the defendant is given the opportunity to defend itself by turning evidence hence it results

that there prevail pro- competitive effects of the conduct

30)

.

One of the most important aspects referred to the court in case of practices whose antitrust

character is established by applying the “rule of reason” is the existence of an abuse of dominant

position on the product’s relevant market. To that effect, it proves necessary to carry out a study of

the relevant market structure and on the concentration of buying power in the affected area. For

example, as a general rule, federal courts tend to presume that when the person charged with having

committed an antitrust practice enjoys no dominant position on the relevant market, its intention by

the time of reducing production or lowering products’ prices can not be that of altering free

competition.

Normally, when the “rule of reason” is applied, the plaintiff is in the position to having to prove

that the antitrust practice is generating essential antitrust effects. Once the plaintiff has proven their

existence, the defendant must bring in front of the court any evidence attesting that the same

practice generated even more important pro- competitive effects. Thereafter, the court shall ask the

28)

Standard Oil Co. of New Jersey vs. United States 221 U.S. 1(1911). Over a period of decades, the Standard Oil

company of New Jersey had bought up virtually all of the oil refining companies in the U.S. Initially, it was assumed

that the growth of this company was driven, primaril y, by superior refining technology a nd consistency in the kerosene

products and, secondarily, tha t they reinvested their profits in the acquisition of everything needed to transform it in the

company with t he largest oil refining c apacity in the Cleveland area. By 1870, Standard Oil was producing about 10%

of the United Stat es output of refined oil. This quickly increased to 20% through the shakeout of the competitors in the

Cleveland area. Its ability to continually lower its production costs an d, thereb y, the cost to the consumer when

purchasing the product, enabled the company to sec ure preferential rates in the region, which compelled the competition

to face bankruptc y or sell out their products. The Court argued that the practices carried out by Standard Oil Company

were unreasonable and u nacceptable, wherefore these were falling wi thin the category of practices prohibited under the

Sherman Act. The arguments of the court decision were innovative. The Court concluded that the terms “restrain of

trade”, “attempts to monopolize” etc. originated i n common law where, at first, any contract r estraining trade was

forbidden. This d octrine was subsequently amende d by case law w hen it was concluded that not any contracts , even if

they display the same features, may be deemed illegal if the liberty of contract of a person was thereby restrained;

consequently, under such terms, a contract can be considered valid if it is shown that the restriction introduced is partial

and reasonable. The court decision supplemented Jud ge Taft’s reasoning by introduci ng a new model applicable called

“rule of reason”. The novelty i ntroduced was that, despite the fact that during the previous period, m onopoly was

considered illegal because it restrained liberty of contrac t to other people who did not participate in its creation, there

may be cases in which a monop oly could be accepted whenever it was concluded that its b enefits exceed its fallouts. To

that effect, it had to be carried out a study on the characteristics of the busine ss a ctivity under review, on the

particularities of the case, on the case history of restrictive challenged practice, on the reasons that led to th e

development of this c onduct and on the effects of t he antitrust practice on the pr oduct’s relevant market. This study led

the Court to the conclus ion that - in this case - the af orementioned conditions were not met because the negative effects

of antitrust practice were pre vailing. Consequently, the Court ordered the dissoluti on of the company into many smaller

competitors on the same relevant market.

29)

Case Addyston Pipe and Steel Co. v. United States, 85 F . 271 (6th Cir. 1898) was the starting point in creating

the new antitr ust practices analysis model, called “rule of r eason”, whose implementation method was strengthened in

the previously mentioned case Standard Oil.

30)

See court decision Chicago Board of Trade v. United States, 246 u.s. 231 (1918), where the federal court

concluded that a conduct is deemed reasonable shoul d it promote competition. Using the “rule of reason” it is

reasonable to accept a conduct which, although restraining c ompetition offers - on the re levant market - other benefits

that exceed the negative effects brought about by means of carrying out the restricti ve practice. For this purpose, see

comments in H ylton, K. N., in Antitrust Law Economic Theory & Common L aw Evolution; Cambridge University

Press, Cambridge, 2003, p. 104 and the following.

10

plaintiff to prove that in order to get the same pro- competitive effects it was neither necessary, nor

reasonably to carry out the antitrust practice under review. As it appears, by using the “rule of

reason” it is not attempted to verify “the conduct’s reasonableness” but, rather, the intention is to

establish whether the restrictive practice tends to restrain or destroy market competition, without

there being any pro- competitive effect appropriate for the industry and the competitive situation

31)

.

It would be worth mentioning that the “rule of reason” always applies to practices deemed

antitrust, according to Section II under the Sherman Act (relative to monopolization and attempted

monopolization). Consequently, Courts have asserted that it is essential to prove not only that the

defendant enjoys a dominant position in the relevant market, but also that this position has been

misused. In the case U.S. vs. Grinnell Corp. [384 U.S. 563, (1966) there were embodied integrated

elements of the monopolization conduct, which follow: a) the possession of monopoly power of the

defendant in the relevant market and b) the willful acquisition / maintenance of that power - in other

words, when neither the maintenance, nor the acquisition of the existing power is due to business

acumen of the defendant, such as placing on the market of a product of superior quality as

compared to existing ones, increase in the company’s efficiency, or just simply the existence of

favorable foreign circumstances. As it also appears in the case of “monopolistic” practices, the

presumption of existence of the conduct’s antitrust character can be challenged should it be

evidenced that the disappearance of competitors in the relevant market is a consequence of either

special merits listed above. In other words, if the defendant fails to prove, by any evidence admitted

in American law, the existence of this acumen, the practice carried out shall be deemed as antitrust

practice and shall be sanctioned as per the law in force.

It’s worth mentioning that, while there are similarities between the abuse of dominant

American and European power, there are also many differences. In order to get the correct idea of

this, we should not forget that on the two continents there have been adopted divergent views on

how market competition should be defended and, therefore, two legal frameworks have been

created that do nothing but respond to different historical experiences, although, as it shall appear in

the next part of the article, the new perspectives on antitrust law seem to tend to slightly

approximate the two systems. As far as these antitrust practices are concerned, the differences

between the two systems are a consequence of the criteria applied in establishing anti- competitive

conducts. For example, the American model does not specifically condemn neither concerted

fixing, either directly or indirectly, of sale or purchase prices, nor application of unequal conditions

to equivalent transactions, but focuses on forbidding any abuse that tends to exclude business

competitors. This approach allows the prohibition as antitrust practices of conducts previously

mentioned and of any other conduct such as, for example: negative action to contract with an

economic agent when there is no other cause than to exclude the aforesaid from the market [case

Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985)] or practice of excessive or

downfall prices, with the view to set aside competition [caso Brooke Group Limited v. Brown &

Williamson Tobacco Co., 509 U.S. 209 (1993)].

Of the two court decisions listed above, special importance is played by Aspen decision on

account that - in this decision - the federal court construed that a conduct tending to rule out

competitors in the field should be conceived as the conduct that not only aspires to harm economic

agents’ opportunities to compete in the market, but also strives to affect competition in a way that is

neither reasonable, nor necessary

32)

.

For the attempted monopolization of the market to be sanctioned, the Supreme Court judged, in

the case Swift & Co. v. U.S., that three conditions must be met: that the defendant carries out an

31)

Anderson, M.C., Self-regulation and league rule s under the Sherman Act, Capital University Law Review,

Florida, 2001, p. 130, text available online on http://culsnet.law.capital.edu /LawReview/Bac kIssues/30-

1/Anderson14.pdf.

32)

Popofsky, M.S., Defining exclusionary conduct: Section 2, the rule of reason, and the unif ying pri nciple

underlying antitrust rules; in Antitrust Law Journal - Vol. 73, Chicago, 2006, p. 439.

11

antitrust conduct, there is the intent to monopolize and a dangerous probability to hold a dominant

market power

33

. This court ruling marked a new beginning for antitrust law with reference to

monopolistic practices, because it allowed for these crimes ex-ante application of antitrust rules,

given that the competent federal bodies can take action in all these cases in a preventive manner. To

that effect, it is sufficient to know the offender’s intention to carry out an antitrust conduct without

expecting that any of the practice’s negative effects is brought forth.

34)

.

This form of classification of antitrust practices in “per se” or “rule of reason” prohibited

practices was considered antitrust methodology and applied in the U.S. for more than a century

without undergoing, from the procedural point of view, important changes. However, by the half of

the twentieth century, known in legal literature as the “rule of reason” century, there have been

recorded changes worthy of being mentioned. First, the direct scope of “per se” rule was

substantially restrained, since courts have introduced a new technique known as “quick-look”. It

emerged in the 80s, its origin being unknown. Notwithstanding the fact that, at first, not all courts

have expressly recognized use of this technique, they never gave up making use of it

35)

. It should be

noted that there is currently no official definition of the technique. In fact, knowledge of it didn’t

prove imperative, as legal literature explained in depth what it dealt with. Judge Thomas argued that

“quick-look” was a method to make a superficial examination of a given situation, so as to

determine whether the challenged practice is clearly anticompetitive and, consequently, can be

considered worthy of being subject to the rule “per se” or, on the contrary, the examination

performed reveals that it would be more appropriate to apply the “rule of reason” to the case sub

judice. Teachers Gavil, Kovacic and Baker discoursed upon “not an immediate condemnation of a

conduct, but a brief analysis performed by way of sentencing it”. Similarly, Professor Piraino

argued that this technique was a method allowing the performance of a brief analysis of antitrust

conduct, not much different from the analysis carried out by the time the rule “per se” was applied.

Some other authors concluded that this technique is very similar to the “rule of reason” because the

reasoning employed allows for pro- and anti- trust effects of a practice, effects which are not taken

into account when applying the rule “per se”. On that account, this technique was called “quick-

look rule of reason”, “the flexible rule of reason” or “the truncated rule of reason”

36 )

.

The Supreme Court makes use of this technique as an intermediate model of analysis and

reasons its employment by the fact that, over many decades of time in which federal courts have

applied antitrust laws, it had been clearly enough established that there is no limit precisely

determined between the two methods used - “per se” and “rule of reason” - wherefore it is

imperative to perform, before applying the rule “per se”, a brief analysis of the relevant market and

of the antitrust practice impact on the relevant market before applying the rule “per se”, because

application of this rule involves automatic incrimination of a conduct. Thus, along with this

technique is initiated a control mechanism that was previously nonexistent.

37)

.

33)

Caso Swift & Co. vs. U.S., 196 U.S. 375 (1905).

34)

Londoño A.F.; Anotaciones sobre el Derecho antimonopolístico en los Estados Unidos de Norteamérica, ed.

CEDEC, Bogotá, D.C., 1992, p. 12.

35)

For further details, see court decisions passed in the following cases: Board of Regents of University of

Oklahoma v. NCAA, case 468 U.S. 85 (1984); Nor thwest Wholesale Stationers, Inc., Petitioner v. Pacific Stationery and

Printing Co., case 472 U. S. 284, 298 (1985); Catalano v. Target Sales, caso 446 U.S. 623 (1980), o Arizona v.

Maricopa County Med. Soc’y, case 457 U.S. 332 (1982).

36)

Brunet, E.; Antitrust Summary Judgment and The Quick Look Approach; Lewis & Clark Law School, Portland,

2009, p. 9 y ss; available online on

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=135861 0&rec=1&srcabs=1446845.

37)

With the view to clearly seize what this technique is dealing with, I deem proper to carry forth the reasoning of

the Court of Appeals in the case Board of Regents of University of Oklahoma v. NCAA, 469 U.S. 85, 104 (1984). NCAA

is an association serving a s the sports activities governing body for u niversities in the United States. In 1981, it adopted

a plan which limited the total amount of televised f ootball games, the number of football games that any one TV

channel may televise (ABC and CBS), under the agreement signed with NCAA, fixing the price for television rights.

CFA, association organized to promote the interests of major NCAA sports colleges and at the same time member of

12

In conclusion, the “quick-look” technique is employed in cases where there are suspicions that

direct application of “per se” rule is not appropriate, though it doesn’t imply that the case should be

reviewed in great depth so as to establish a conduct’s antitrust character. Nowadays, this technique

is part of the antitrust methodology employed in the U.S., analyzing economic effects of an antitrust

practice with the view to be ruled by the court whether conduct, by its social risk, is worthy of being

sanctioned by applying the rule “per se” or, what it makes no difference, when there is doubt that

the effects of conduct may substantially affect market competition, it reveals imperative to apply the

“rule of reason” so as to decide upon the antitrust character of the challenged conduct.

38)

. During

recent years, prohibited “per se” practices were considered worthy of a “quick condemnation”,

except in cases where the defendant evidences the existence of a plausible and sufficiently reasoned

fact so as to raise reasonable doubt (“hotly litigated”)

39)

. That is to say, existence of damage is

presumed and the defendant undertakes to prove that there are enough pro- competitive effects so as

not to declare a practice prohibited under the form “per se”. Should the arguments of the defendant

be accepted, the “rule of reason” is normally applied, while the defendant is allowed to prove that

the practice carried out is not anticompetitive.

NCAA, expressed disagreement with regard to this new policy, accordingly concludin g other contracts with ABC and

CBS that would have allowed a more liberal number of football games to be broadcast and rebroadcast. Consequently,

the NCAA ruled disciplinary action against the association. CFA lodged a complaint with the competent federal court,

arguing that this sanction was unjustified and the conduct manifested by the NCAA in breach of the Sher man Act,

particularly Section I. The C ourt of First Instance concluded that the NCAA has made an abuse of power, sanctioned

under Section I of the Sherman Act.

The Court of Appeals debated the case in depth and f ound that free competition had been restra ined in three ways.

Price fixing for particular telecasts, exclusive ri ghts for football games broadcast were granted in favor of two television

channels and the threat of sanctions against CFA agency was tantamount to a boycott of all other p otential competitors

operating in the same relevant market, since, except for ABC a nd CBS, no other channel was entitled to rebroadcast

football games. Prima facie, this conduct was judged as a horizontal price fixing and output limitation agreement, but

the arguments offered by the NCAA made the court question whether or not to apply directly “per se” rule and whe ther,

consequently, it may be inappropriate not to apply the “rule of reason”. NCAA argued that the sole objective pursued

by taking such measures was to protect universit y sport, wherefore no economic reason boosted the conclusion of the

new agreement.

It should be noted that this court decision marks a significant change in case law since - as already mentioned - all

antitrust practices sanctioned under Sectio n I of the Sherman Act are “per se” prohibited practice s, where defendants are

not given t he right to defend on the strength of arguments. T he change allows to prove by any evidence that t he

defendant did not commit the crime it is charged with. The C ourt judged in this case that the absence of s uch financial

gains is a sufficient argument that may raise reasonable d oubt, wherefore there shall be performed a brief examination

of the conduct carried out a nd of the relevant affected market. Primarily, the Court ar gues that, if one takes into account

that not all television channels have been granted the opportunity to televise football games, the practice carried out can

be invested with essential character, wherefore the “rule of reason” can not be applied. However, the NCAA argued that

any person may enjoy live attendance of a football game and this approach grants the practice carried out ancillar y

character, because the product “is available at all”. By the measure taken it is pursued only to remove the adverse

effects of broadcastin g football games, since stati stics carried out from the moment university games starte d to be

televised show that the number of people going on stadium to see a game has been considerably diminished. Thus,

football games gradually come to be pla yed on a nearly empty stadium. In conclusion, NCAA holds imperative the

adoption of a similar measure, because only in this wa y interest in university football may be preserved and it might be

expected that it shall tur n once again into the attractive sport of yore. In addition, sports colleges will be able to recover

economic losses r esulting from limiting the number of televised f ootball games, because a rapid growth in the number

of spectators is foreseen, wherefore more ent rance tickets will be sold at the stadium. The Court of Appeal judged that

these arguments, entirely hypothetical, are no guarantee, consequently, it would be unacceptable to apply to this

practice a model diff erent from the “per se” rule. Even if it doesn’t get d own in this case to the application of the “rule

of reason” and antitru st practice is reproved by applying t he rule “per se”, the fact t hat the court accepted and analyzed

the arguments offered by t he defendant is a n ovelty, given that the prac tice carried out is one of the unlawful conducts

that has always been directly punished so far.

38)

For more details, see Section of Antitrust Law in Antitrust and Associations Handbook, ABA, Illinois; 2009, p.

43 and the following.

39)

See opinion formulated by Section of Antitrust Law in Handbook on the Aspects of Stand ards Setting, ABA,

Illinois, 2004, p. 40 and the following.

13

III. Supreme Court case law in the field of antitrust practices

U.S. courts have made great efforts to create rules to properly operate in Antitrust Law, as “per

se” rule for antitrust practices condemned by applying Section I of the Sherman Act and the “rule of

reason” for the practices condemned under Section II of the Sherman Act. A methodology which, as

previously mentioned, has not undergone major changes until the end of the twentieth century when

the “quick-look” technique emerged, that courts started to continuously apply in relation to

prohibited “per se” antitrust practices.

From this point gathers way the fact that courts reject direct application of the rule “per se”.

What is the cause? What happened? One reason was the private enforcement system of antitrust

law. But for the United States, in no other place in the world the injured party may claim and obtain

treble damages caused as a result of developing an antitrust practice. Should applicable procedural

laws in the field of antitrust law, which are extremely permissive, be added up to this particular

argument - as to these issues, I shall comment hereinafter on some aspects that are worth being

taken into account - it is no question about a more tempting offer to determine someone to lodge a

complaint in some other state than the U.S. With the view of monitoring this phenomenon, federal

courts started to elaborate and apply in relation to antitrust cases procedural and material criteria,

much more stringent than the ones applied until the end of the twentieth century.

New articles published in the field would find, one way or the other, a single explanation to this

phenomenon: federal courts are much more alarmed by a “false positive” than by a “false negative”.

In other words, these articles conclude that if the application of more stringent criteria entails

defendants being claimed to offer sufficient evidence so as to establish with a much higher degree

of certainty the unlawful nature of a conduct - condition not always easily to be met by all potential

plaintiffs - courts prefer to abandon condemnation of an illegal conduct as antitrust practice on

account of lack of sufficient evidence (“false negative”) than to rule a conduct as antitrust without

reviewing in great depth each and any aspect that can be allowed for (which could lead to a “false

positive”), and this because once a conduct is judged antitrust, the aggrieved parties are entitled to

receive treble damages, litigation costs and fees of legal representatives

40)

.

Since it is extremely difficult to put in a few pages the approach method employed over time by

federal courts with regard to the issue of ruling a conduct as antitrust practice, I settled upon

tackling the presentation of recent case law amendments directly affecting private application of

antitrust law.

To start with, it is important to put forward the reasoning of the Supreme Court in the case

Twombly

41)

, reasoning directly affecting application of Section I under the Sherman Act. William

Twombly and other consumers brought a class-action lawsuit against Bell Atlantic company and a

number of other large telephone companies. Twombly alleged that these companies failed to

comply with the provisions set forth under Section I of the Sherman Act since they agreed not to

compete with each other any longer, wherefore they signed an agreement dividing the sales market

on territorial criteria and prevented the emergence of new companies in the relevant market. The

Court of First Instance

42)

judged that the plaintiff’s arguments were insufficient so as to admit the

complaint lodged, in as far as these were purely and simply circumstantial. The main argument of

the court decision was that the existence of an antitrust practice being suspected alone is insufficient

to lodge a complaint, as several companies manifested parallel conduct concurrently. Thus, the

court asked for “extra” evidence tending to exclude the possibility that the same conduct to be

40)

For this purpose, see the articles of Rosch, J.T.: Has t he pendulum swung too far? Some reflections on U.S. and

EC jurisprudence; Washington, D.C., 2007, The State of Antitrust in 2008, Charleston, 2008; Striking a Balance? Some

Reflections on Private Enforcement in Europe and the United Sta tes; New York, 2008.

41)

Bell Atlantic Corp. V. William Twombly et.al.; 127 Ct. 1955 (2007).

42)

Twombly v. Bell Atlantic Corp., 313 F. Supp. 2d 174, 179 (200 3).

14

adopted independently by various companies, i.e. without any agreement having been concluded by

and between the aforesaid.

The plaintiff appealed this decision, and the Court of Appeal

43)

concluded that, under the case

law line initiated in the case Conley v. Gibson

44)

, the complaint lodged is accepted if it states facts

which make the existence of an antitrust conduct “conceivable”, and it could only be dismissed in

case it would be able to prove “no set of facts” in support of the claim. Consequently, applying the

old criteria, the court concludes that it is sufficient to notify the legal authorities on the existence of

a parallel conduct similar to the one pointed out in this case, so that the complaint lodged be

accepted, even if this does not infer the existence of an antitrust practice. In other words, the

plaintiff may not be challenged to produce that “extra” required by the Court of First Instance.

This court decision is also appealed by the defendant and the Supreme Court passes another

ruling confirming the reasoning in the decision passed by the Court of First Instance. In brief, this

Court is arguing that it’s time to take a case law amendment on this issue by adopting a less

permissive criterion. It is therefore necessary to claim that a complaint be based on particular facts

sufficiently plausible so as to create an expectation under which it can be accepted the existence of

a sign on the development of any antitrust practice. Therefore, the novelty introduced is obvious -

there can no longer be accepted complaints based on mere hypothetical facts

45)

.

This reasoning brought about immediately the effect expected by the Supreme Court - there was

recorded a decrease in the number of liability claims initiated after carrying out a prohibited

antitrust practice under Section I of the Sherman Act. Secondly, it should be noted that all parties

involved benefit from this criterion - both parties in the civil case and legal authorities - since

judicial and business appeals are no longer fruitlessly wasted so as to analyze any conduct alleged

as antitrust, considering that the plaintiff reviews the case much in depth before lodging a

complaint

46)

.

Another important court decision which introduces a new case law amendment affecting

application of Section II of the Sherman Act is decision passed in the case Weyerhaeuser Co. v.

Ross-Simmons Hardwood Lumber Co.

47)

. Weyerhaeuser company is one of the leading pulp and

paper companies in the world, which was charged with violation of Section II of the Sherman Act.

The company had bid up input costs, because it wanted that suppliers reserve it the right to be

supplied with products necessary for the manufacturing of pulp and paper before any other

competitor on the market. Consequently, competitors have been forced to pay higher prices to their

suppliers, which led to an increase in output costs. However, Weyerhaeuser was the only one that

did not alter the price of merchandised products.

In a particular verdict, the jury Court concluded that the civil case introduced may not be

accepted, since the relevant market in this case was the wood market and Weyerhaeuser Company

did not enjoy adequate market power so as to alter free competition, wherefore it would be

43)

Twombly v. Bell Atlantic Corp., 425 F.3d 99, 114 (2005).

44)

With the view to outline the idea that the amendment framed on these lines by the First Instance was innovative

in antitrust law, a brief hist ory of the topic avers requisite. First, it’s worth mentioning court decision Theatre

Enterprises, INC. v. Paramount Film Distributing Corp., 346 U.S. 537 (1954), where the Supreme Court argued that

“proof of parallel business behavior between the economic conduct that is the subject of the civil action introduced a nd

another antitrust conduct does not conclusively establish the existence of a new antitr ust behavior, nor does such

behavior itself constitute an antitrust offense”. This reasoning did not serve much federal courts that had to judge cases

there being no telling whet her a civil action had to be approved un der the given circumstances, since nothing was being

mentioned thereupon. The Supreme Court dissipated this doubt sometime later, u nder the court decision Conle y v.

Gibson, 355 U.S. 41 (1957), referred to above.

45)

Gist, R.; Transactional Pleading: A Proportional Approach to Rule 8 in The Wake of Bell Atlantic Corp. v.

Twombly, in Wisconsin Law Review, Wisconsin, 2009, p. 1 031 and the following.

46)

For further details, see Cherry, S.F., Pearson, G., Why Twombly Does (and Should) Apply to All Private

Antitrust Actions, Inclu ding Alleged Hard-Core Cartels: A Reply to William J. Blechman, in The Antitrust Source,

ABA, Chicago, 2007.

47)

Case 127 S. Ct 1069 (2007).

15

considered appropriate to judge that, lacking the existence of adequate power market, no antitrust

conduct could have been developed. The plaintiff argued that, in this case, the relevant affected

market was not the wood market, as judged by the jury Court, but the alder one (where the market

power of the defendant company reached 65%), but not enough evidence has been brought so as to

persuade the jury thereupon. It was only mentioned that alder has some features other trees have

not, so that alder wood could not be replaced with other wood

48)

. Even so, the jury identified in this

case the existence of an antitrust abusive practice, carried out by offering some input sales prices

much higher than the normal price of these products (“predatory bidding”), aiming to prevent other

competitor companies to buy these products at a “fair” price. This conduct was judged identical to

practicing predatory pricing, as it was concluded that the objective the aforesaid company set itself

to achieve was to shakeout competition existing on the market.

The court decision was appealed by the defendant, and the appeal was based on the fact that

antitrust case law doctrine in the case Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.

49)

highlighted the fact that one can not assess the existence of an antitrust practice if the selling price

of a product is higher than production costs. The Court of Appeal noted that this particular case

deals with an abusive practice similar to predatory pricing, though not identical to it, wherefore

there can not be applied the same doctrine in the case sub judice.

The Supreme Court held that the aforesaid doctrine is applicable because there can be

established the similarity existing between the challenged conduct and a predatory pricing scheme,

but it underlined some issues worthy to be considered. First, the Court argued that, under the

predatory pricing scheme, a company aims to obtain monopoly power on the product’s market in

which it carries out its business, because by way of this practice existing competition is eliminated

and the emergence of new companies is thus avoided, as the said company finally gets to control

prices of products on the relevant market in which it carries out its business. However, as far as the

case under review is concerned, the conclusion of contract conditioning the supplier to sell to

Weyerhaeuser Company all raw materials necessary to the latter in order to release on the market its

products before fitting out other rival companies, enables the company to acquire monopoly power,

forasmuch as this transaction enables the company to control input prices

50)

and, consequently, to

control production costs of competitors, since it diminishes their purchasing power. Secondly, so

that the practice carried out by Weyerhaeuser to be considered antitrust, two conditions must be

met: a) bidding up of raw materials should cause competitors cost of the relevant output to rise

above the revenues generated in the sale of those outputs and b) there is a high probability that the

defendant, through the exercise of monopoly power acquired, be able to recover the losses incurred

in bidding up input prices.

48)

It should be noted that in an antitr ust case it is vital to determine the relevant market of a product. The plaintiff

shall always preserve as the relevant market of a product a market of products as numerically narrowed down as

possible, while the interest of the defendant is to prove the contrary. This principle is used in the European case, as well,

whether domestic or EU regulati ons in the fiel d of competition law are applicable or not. In order to give a practical

example where a very similar argument to the one offered by the plaintiff in the case me ntioned above was accepted, I

wish to menti on court decision United Brands v. European Commis sion, Case 27/76, where it was established that the

relevant market affected by the challenged anticompetiti ve conduct was the relevant market of bananas, and not the

fresh fruit mar ket, because bananas have special characteristics that other fruits have not, and which proved to be

sufficient in order to reach this c onclusion. Let us imagine that the fresh fruit market would have been accepted as

relevant market affected. Not only ba nanas are sold on this market, but all sorts of fruits such as: apples, pears, cherries,

lemons, etc. The defendant is producer of bananas exclusively. Although United Brands company would be the onl y

company producing bananas in the world, it would be almost impossible to argue that it benefits of sufficient power on

the fresh fruit market so as to carry out anticompetitive p ractice. For this to be possible, the entire global population

should be “inveterate” c onsumers of bananas and just occasionally s hould it consume other fruits, and we are all

convinced that this is not the real case.

49)

Case 509 U.S. 209 (1993).

50)

It should be appreciated that in this case, the Weyerhaeuser company gets to control the price of products on a

relevant market other than the relevant market in which it carr ies out its business.

16

This court decision was welcomed by some lawyers and criticized by some others. Those who

have criticized it stated their arguments in the well-known “The Consumer Welfare Effect Test”.

This test is made up of stages. This is a reliable indicator in determining the antitrust nature of a

conduct. First, we must determine whether reasonable grounds exist so as to believe that a given

conduct creates, preserves or extends the defendant’s monopoly or monopsony power, while

competitors have their opportunity to operate on the same relevant market decreased. It is not

difficult to be aware of the fact that the practice carried out by Weyerhaeuser company fulfills this

condition and it can be acted toward the completion of the second stage. It is therefore necessary to

consider whether the practice carried out fulfills one of the following three conditions: makes no

profit to consumers, disproportionally affects the level of competitors’ gains or is not needed by

consumers. The given conduct easily fulfills two of the three conditions, therefore, along with the

conclusion of this test, it can be argued that the challenged practice may be deemed antitrust under

Section II of the Sherman Act

51)

.

As already mentioned, there are also lawyers that deemed reasonable the new criterion

introduced by the Supreme Court, because it does not contradict the criterion employed in the case

Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. but simply complements what was

previously stated. Despite the fact that, after a simple reading, the old point of view seems to be

changed, because the court decision lets us assume that the Supreme Court absolutely rejects

application of the so-called “The Consumer Welfare Effect Test”, not the same thing goes in terms

of application of the system developed by Judge R. Posner, known as “Equally Efficient Rival Test”.

Posner argues that whenever one of the competitors on the same relevant market carries out a

conduct similar to the aforementioned, one of the following three situations may occur. To start

with, if one company is able to pay more for raw materials, the same may be done by other equally

efficient competitor. In the next place, there can be the limit situation that an increase in production

costs does not allow a competitor to obtain gains, but it neither incurs losses (in other words,

economic inputs are equal to economic outputs). In these two situations, it may be asserted that the

company carrying out the prohibited practice and the affected competitor are equally effective for

they may run on the same relevant market. As per the third possibility, the consequence caused by

increasing input price is that it forces the competitor to exit the market, since it doesn’t afford to

purchase raw materials at the new price. This is the only situation where, according to Posner and

the Supreme Court, it may be sanctioned. The theory deemed adequate to this situation, since it is

easily applicable to a real case, vitally diminishing the possibility that a “false positive” might

occur

52)

.

Finally, the case Leegin

53)

is equally extremely important, because the court decision establishes

new criteria applicable for the case of concerted minimum resale price fixing. Compared with the

previous decision, unanimously passed, this case deals with a decision adopted by absolute

majority. Facts under review are simple. Leegin company stopped selling its products to PSKS Inc.

company, since the latter resold the products below the price suggested by Leegin. PSKS filed suit

alleging that Leegin entered into vertical agreements with its retailers to set minimum resale prices.

The Supreme Court argued that the latest studies in the field of antitrust law show that not all

vertical agreements cause only negative effects, but there are also agreements that cause positive

effects, one of the more striking examples being the fact that these agreements converge to

encourage competition between trademarks (“inter-brand competition”). Consequently, this conduct

51)

For further details, see Areeda, P.E. & Hovenkamp H.; 3 Antitrust Law: An Analysis of Antitrust Principles and

Their Application, 2ª ed., Aspen Law & Business, New Yor k, 2002, 651a.

52)

For further details, see opinion of Lambert, T.A. in his article entitled Weyerhaeuser and the Search for

Antitrust´s Holy Grail in Cato Supreme Court Review-2006/2007; Law Legal Studies Research, 2007, Washington,

D.C., p. 297 and the following, in which it argues that shoul d case law accept this point of view, the maximum prudence

defended by Voltaire, according to which “the perfect is the enemy of the g ood ”, would be thereby adhered to.

53)

Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007).

17

should be removed from the scope of the rule “per se”, in as far as there can not be stated with

certainty that always, or in almost all cases, concerted minimum resale price fixing adversely affects

free competition.

The decision is no news, but it embodies the efforts made by the Supreme Court during the last

thirty years with the view to amend the system applicable to vertical restrictions

54)

, effort opened in

the case GTE Sylvania

55)

. This does not infer that concerted minimum resale price fixing of a

product is considered a lawful “per se” agreement, nor the “rule of reason” is applicable to each and

any similar vertical agreement. Literally, the Court emphasizes that this is one of the so-called

“cases limit” where the “quick-look” technique should be applied in order to determine - after

analyzing the affected relevant market and the market power owned by the defendant - whether

“per se” rule or “rule of reason” are applicable to the case sub judice. The new criterion introduced

by way of this court decision was taken up both by federal courts and by most of the various

Member States, that started to implement all the necessary amendments to their antitrust regulations

in order to apply the new criterion

56)

.

IV. Conclusions

57)

All facts mentioned above are consequence of the fact that the American experience gained in

the field of antitrust law highlighted that, in many cases, the objective determining the plaintiff to

institute legal proceedings is not identical to the one which it is attempted to be achieved through

the application of antitrust regulations. Namely, this assertion would be equivalent in everyday

language to the saying “every coin has two faces” - one is the one wishing to make itself known and

the other is the one trying to hide itself, or better said, “to cover up”, admissible case in the U.S. due

to the existence of extremely permissive rules in this field, as I shall try to highlight hereinafter.

Under a broad outline, it might be stated that competitors are given the opportunity to apply

antitrust laws in their favor and attorneys are given the opportunity to settle almost all cases

extrajudicially, gaining thus large financial amounts, which they receive under the form of fees, far

from being hard-earned in terms of case defence.

For I want the reader to be able to imagine how this system works in practice, I shall seek

hereinafter to define threats turning antitrust laws into an “effective weapon for riding the gravy

train” .

Normally, in most cases of private antitrust laws enforcement - I particularly refer to actions for

damages - the party instituting the proceedings seeks to take advantage of any gaps in the system so

as to put the defendant “between the devil and the deep blue sea”

58)

. We must bear in mind that, in

most of the cases, there is not only one plaintiff, in 99% of cases there are multiple plaintiffs for that

it is very difficult that an antitrust practice affects only one individual or corporation, wherefore the

defendant is bound to choose one of the two possibilities granted to him. He either decides to

litigate, standing the risk of losing the case and paying financial amounts that may lead him to

bankruptcy - very likely situation since, except for ancillary agreements, monopoly and attempted

54)

The application of the old system used for almost a century is thus waived, that is since its approach in the case

Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911) until the pronouncement of court decision i n

the case Leegin. Pursuant to the old system, concerted minimum resale price fixing was consi dered a prohibited “per

se” antitrust practice, as it violated Section I of the Sherma n Act.

55)

Continental T.V., INC. v. GTE Sylvania, INC., 433 U. S. 36 (1977).

56)

For further details, see Lindsay, M.A.; State Resale P rice Maintenance Laws After Leegin; in The Antitrust

Source; ABA; Chicago; 2009; p. 2 and the followi ng, text available online on

http://www.dorsey.com/files/upload/lindsay_eupdate_antitrust_o ct09.pdf.

57)

Standpoints put forward below are absolutely pers onal.

58)

For further details, see Rosch, T., Striking a Balance? Some Reflections o n Private Enforcement in Europe and

the United States; FTC, New York, 2008, p. 23 and the followi ng.

18

monopoly cases, all other practices were condemned as “per se” antitrust

59)

, before amendments

outlined in article hereby are implemented, or attempts to settle the case extrajudicially. I would like

to point out that, although one may say that, in terms of practices covered by the “rule of reason”,

the defendant may have the chance that the conduct carried out is not judged as antitrust, as far as

practices subject to the rule “per se” are concerned, it is common knowledge from the very outset

that a condemnation ruling is to be passed. Judiciously, the second option shall be chosen ninety

times out of a hundred. This is the prospect of popular actions (“class-actions”).

The second case is represented by individual actions (“stand-alone actions”) in which

extremely permissive procedural rules with respect to the discovery of antitrust practice gives the

plaintiff the opportunity to abuse, blackmail and even impose upon the defendant payment of

excessive amounts. The only procedural impediment the plaintiff has to overcome is to have

admitted his complaint lodged, point at which he is given the opportunity to claim at least expenses

incurred in relation to ruling upon the alleged unlawful conduct, minding that there is the possibility

to receive treble damages, litigation costs and attorney’s fees, should the Court rule as antitrust the

practice carried out by the defendant. Additionally, an action for damages involves a trial that

complex and exhausting, compelling thus the defendant to reach an extrajudicial agreement

60)

.

Courts have pointed out all these threats and decided to introduce the “quick-look” technique as,

under this form, it commits the plaintiff to review the case in depth before instituting an action for

damages. Moreover, all these case law amendments illustrate courts’ concern to avoid that people

that have not been actually affected by the development of antitrust practices enjoy the benefits

provided under this private application system. Consequently, the enforcement of both procedural

and substantive rules of law has been strengthened.

Legal American literature

61)

concluded that the new decisions greatly cater to current exigencies

in the field of antitrust law, even though there have been lawyers unwilling to agree to them from

the very beginning. Application of the new criteria endeavours: a) to avoid drain away of judicial

appeals; b) not to reimburse large financial amounts to fake injured people and c) this to be

accomplished without affecting real injured people’s opportunity to receive remedies deserved.

References

I. Legal texts

Sherman Antitrust Act (1890) – Title 15U.S.C., Chapter 1, § 1–7.

Clayton Act (1914) - Title 15U.S.C., Chapter 1, § 12–27.

Federal Trade Commission Act (1914) - Title 15U.S.C, Chapter 2, Subchapt. 1, § 41-58.

Robinson Patman Act (1936) - Title 15U.S.C., Chapter 1, § 13.

Celler-Kefauver Act (1950) - Title 15U.S.C., Chapter 1, § 18.

Hart-Scott-Rodino Act (1976) - Title 15U.S.C., Chapter 1, § 18ª.

II. Books

ABA Section of Antitrust Law; Antitrust and Associations Handbook; ABA; Illinois; 2009.

--- Handbook on the Aspects of Standards Setting; ABA; Illinois; 2004.

--- Proving Antitrust Damages – Legal and Economic Issues, 2th ed.; ABA; Illinois; 2010.

59)

I hereby restate the fact that, once a federal court rules that “per se” rule is applicable to the case s ub judice, the

only valid defense is to prove that the defendant is not the pe rson having carried out the antitrust practice.

60)

See case Franchise Realty Interstate Corp. v. Local Joint Exec. Bd. of Culinary Workers, 542 F.2d 1076, 1083

(1976).

61)

Areeda, P.E., Hoven kamp, P., Antitrust law – An Analysis of Antitrust Principles and Their Application, Aspen,

2008, p. 154: “ Class actions…can consume massive judicial resources, result in enormous costs for all parties, and

threaten gigantic recoveries. A class action can be the vehic le to strike suits designed to coerce a settlement”.

19

--- Consumer Protection Handbook; ABA; Illinois; 2004.

Álvarez Zenteno, R.; Una visión de nuestro Derecho de la competencia; en Revista del

Abogado Nº 6; Colegio de Abogados; Chile; 1996.

Anderson, M.C.; Self-regulation and league rules under the Sherman Act; Capital University

Law Review; Florida; 2001.

Areeda, P.E. & Hovenkamp H.; 3 Antitrust Law: An Analysis of Antitrust Principles and Their

Application; 2ª ed.; Aspen Law & Business; New York; 2002.

Aspen Law Center; Health Care Antitrust; Aspen Publication, Maryland; 1998.

Baker, D.I.; Revisiting History-What have we learned about private antitrust enforcement that

we recommend to others?; in Loyola Consumer Law Review; Washington, D.C.; 2004.

Barón Alsina, I.; Referencia al Derecho Comparado de la Libre Competencia: Derecho

Antitrust Norteamericano y Derecho de la Competencia de la UE; Centro de Libre Competencia;

Chile; 2007.

Beschle, D.L.; What, Never? Well, Hardly Ever: Strict Antitrust Scrutiny as an Alternative to

Among Competitors; Antitrust L.J.; Chicago; 1989.

Brunet, E.; Antitrust Summary Judgment and The Quick Look Approach; Lewis & Clark Law

School; Portland; 2009.

Cavanagh, E.; Antitrust Remedies Revised; en Oregon Law Review; Vol. 84; University of

Oregon; Oregon; 2005.

Chechey D.P.; David, E.; Antitrust; en American College of Legal Medicine; Legal Medicine,

6th ed.; Mosby; 2004.

Cherry, S.F.; Pearson, G.; Why Twombly Does (and Should) Apply to All Private Antitrust

Actions, Including Alleged Hard-Core Cartels: A Reply to William J. Blechman; en The Antitrust

Source; ABA; Chicago; 2007.

Díez Estella, F.; Los objetivos del Derecho antitrust; in Gaceta jurídica de la UE y de la

Competencia - Nº 224; Fundación Ico; Nebrija; 2003.

Emerson R.W.; Business Law; 5

th

ed.; Barron´s Educational Series, Inc.; New York; 2009.

Foer, A.A. y Lande, R.H.; The Evolution of United States Antitrust Law: The past, present and

future; American Antitrust Institute; Baltimore; 1999.

Gist, R.; Transactional Pleading: A Proportional Approach to Rule 8 in The Wake of Bell

Atlantic Corp. v. Twombly; en Wisconsin Law Review; Wisconsin; 2009.

Hammond, S.D.; Barnett, B.A.; Frequently asked questions regarding the antitrust division´s

leniency program and model leniency letters; U.S. Department of Justice; Washington D.C.; 2008.

Harley, J.E.; The rule of reason; American Barr Association; Illinois; 1999.

Hylton, K. N.; Antitrust Law Economic Theory & Common Law Evolution; Cambridge

University Press; Cambridge; 2003.

Hobst, A.; Celler-Kefauver Act; in Encyclopedia of White-Collar & Corporate Crime; Sage

Publications, Ltd.; California; 2005.

Jacobson, J.M.; Antitrust Law Developments, 6

th

ed.; Vol. I; ABA Book Publishing, Illinois,

2007.

Lambert, T.A.; Weyerhaeuser and the Search for Antitrust´s Holy Grail en Cato Supreme Court

Review-2006/2007; Law Legal Studies Research; Washington, D.C.; 2007.

Lindsay, M.A.; State Resale Price Maintenance Laws After Leegin; en The Antitrust Source;

ABA; Chicago; 2009.

Link, A.S.; Wilson: New Freedom; texto republicado por ACLS; New York; 2008.

Lizana, C.; Pavic, L.; Control Preventivo de Fusiones y Adquisiciones frente a la Legislación

Antimonopolios, en Revista de Derecho; Vol. 29 - Nº3; Chile; 1990.

Londoño A.F.; Anotaciones sobre el Derecho antimonopolístico en los Estados Unidos de

Norteamérica; CEDEC; Bogotá D.C.; 1992.

20

Miller E.L.; Mergers and adquisitions: a step-by-step legal and practical guide; Willey &

Sons., Inc; Boston; 2008.

Neumann, M.; Competition Policy. History, Theory and Practice; Edward Elgar Publishing,

Inc; Massachusetts; 2003.

Popofsky, M.S.; Defining exclusionary conduct: Section 2, the rule of reason, and the unifying

principle underlying antitrust rules; in Antitrust Law Journal - Vol.73; Chicago; 2006.

Rosch, J.T.; Has the pendulum swung too far? Some reflections on U.S. and EC jurisprudence;

FTC; Washington, D.C.; 2007;

--- The State of Antitrust in 2008; FTC; Charleston; 2008;

--- Striking a Balance? Some Reflections on Private Enforcement in Europe and the United

States; FTC; New York; 2008.

Rubin, J.E.; General Overview of United States Antitrust Law; ed. Library of Congress -

Congressional Research Service; Washington, D.C.; 2001.

Sklar, M. J.; The Corporate Reconstruction of American Capitalism, 1980-1916- The Market,

The Law and Politics; publicado por University of Cambridge; Cambridge; 2004.

III. Court decisions

Addyston Pipe and Steel Co. v. United States, 85 F. 271 (6th Cir. 1898).

Arizona v. Maricopa County Med. Soc’y, case 457 U.S. 332 (1982).

Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985).

Bell Atlantic Corp. V. William Twombly et.al.; 127 Ct. 1955 (2007).

Board of Regents of University of Oklahoma v. NCAA, 469 U.S. 85, 104 (1984).

Board of Regents of University of Oklahoma v. NCAA, case 468 U.S. 85 (1984).

Brooke Group Limited v. Brown & Williamson Tobacco Co., 509 U.S. 209 (1993).

Brooke Group Ltd. v. Brown & Williamson Tobacco Corp . 509 U.S. 209 (1993).

Catalano v. Target Sales, caso 446 U.S. 623 (1980).=

Chicago Board of Trade v. United States, 246 u.s. 231 (1918).

Conley v. Gibson 355 U.S. 41 (1957).

Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36(1977).

Continental T.V., INC. v. GTE Sylvania, INC., 433 U. S. 36 (1977).

Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911).

E.I. DuPont de Nemours&Co. v. FTC; 927 F.2d 128, 136 (1984).

FTC v. Indiana Fed´s of Dentists, 476 U.S. 447, 458 (1986)

FTC v. Sperry&Hutchinson Trading Stamp Co.; 405 U.S. 233 (1972).

Jefferson Parish Hosp. Dist. Nº2 v. Hyde, 466 U.S. 2, 15-18 (1984).

Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007).

Northern Pacific Railroad Co vs. United States 356 U.S. 1 (1958).

Northern Securities Co. v. United States, 193 U.S. 197 (1904).

Northwest Wholesale Stationers Inc. v. Pacific Stationery and Printing Co., 472 U.S. 295-298

(1985).

Northwest Wholesale Stationers, Inc., Petitioner v. Pacific Stationery and Printing Co., case

472 U.S. 284, 298 (1985).

PSI Repair Serv. V. Honeywell Inc., 104 F. 3d 811- 815 (1995).

Standard Oil Co. of New Jersey vs. United States 221 U.S. 1(1911).

Swift & Co. v. U.S. 196 U.S. 375 (1905).

Theatre Enterprises, INC. v. Paramount Film Distributing Corp., 346 U.S. 537 (1954).

Twombly v. Bell Atlantic Corp., 313 F. Supp. 2d 174, 179 (2003).

Twombly v. Bell Atlantic Corp., 425 F.3d 99, 114 (2005).

21

U.S. vs. Grinnell Corp. [384 U.S. 563, (1966).

US vs. Addyston Pipe and Steel Company, 175 U.S. 211 (1899).

Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 127 S. Ct 1069 (2007).