Antitrust

Competition law is known as “antitrust law” in the United States, as both “antitrust” and “competition law” in the European Union and as “anti-monopoly” laws in other jurisdictions.  MoginRubin lawyers have been leaders in antitrust law for over 35 years, helping companies fight for their place in the market through litigation in federal and state courts around the country and representing their interests before the Department of Justice, the Federal Trade Commission, Congress and state legislatures.  With the combined experience of private litigators, economists and former government attorneys, we simplify antitrust’s complexities.  MoginRubin lawyers have been a part of some of the largest antitrust cases in recent history.

The primary US federal antitrust laws are the Sherman Act, the Clayton Act and the Federal Trade Commission (FTC) Act.  Most states also have antitrust laws; many state statutes are based on or similar to the federal antitrust laws.

  • Private parties can sue to enforce the antitrust laws.  In fact, most antitrust suits are brought by businesses and individuals seeking damages and/or court orders preventing anticompetitive conduct.

SHERMAN ACT:

  • Section 1 [15 USC §1] outlaws joint or concerted action that restrains trade. Examples include understandings, agreements, contracts, combinations,  conspiracies, arrangements and behaviors by competitors like cartels, price-fixing,  output restrictions, supply restrictions, bid-rigging, market division, customer allocation, territorial or geographic restrictions, boycotts, joint refusals to deal, rule-fixing, and certain information sharing.  Many types of conduct are considered so harmful to competition they are almost always illegal per se; no defense or justification is allowed.
  • According to the Supreme Court:
    “Any combination which tampers with price structures is engaged in an unlawful activity.  Even though the members of the price-fixing group were in no position to control the market, to the extent that they raised, lowered, or stabilized prices they would be directly interfering with the free play of market forces . . . Nor is it important that the prices paid by the combination were not fixed in the sense that they were uniform and inflexible.  Price-fixing . . . has no such limited meaning.  An agreement to pay or charge rigid, uniform prices would be an illegal agreement under the Sherman Act.  But so would agreements to raise or lower prices whatever machinery for price-fixing was used . . . Hence, prices are fixed . . . if the range within which purchases or sales will be made is agreed upon, if the prices paid or charged are to be at a certain level or on ascending or descending scales, if they are to be uniform, or if by various formulae they are related to the market prices. They are fixed because they are agreed upon.”

Legally, supply-fixing is treated the same as other types of price-fixing.

MoginRubin lawyers have successfully litigated Section 1 cases in many industries, including software, computer memories, computer monitors, components, entertainment, energy, oil & gas, petroleum products, oil services, packaging, consumer products, appliances,  HVAC, banking, financial services, ATM, foreign exchange, payment systems, pharmaceuticals, over-the-counter (OTC) medications, vitamins, supplements, cosmetics, real estate, food products, paint, textiles, automotive parts, optical products, travel, construction materials, medical devises, specialty chemicals and  many others.

  • Section 2 [15 USC §2] outlaws monopolization, attempted monopolization, and conspiracy to monopolize.  Monopolization claims first examine the products sold by the dominant firm and their alternatives to define the relevant market. Courts determine whether the dominance was achieved or maintained by anticompetitive conduct—something other than having a better product, superior management or being the first-mover.  Courts do not require a literal monopoly; a “monopolist” is a firm with significant market share and durable market power.  Exclusionary or predatory acts include such things as exclusive supply or purchase agreements, blocking market access, forcing the purchase of unwanted products, predatory pricing or refusal to deal.

MoginRubin lawyers have litigated many Section 2 cases. Here are some examples.

CLAYTON ACT:

  • Section 4 [15 USC §15] authorizes private parties to sue for triple damages, and
  • Section 16 [15 USC §26] authorizes private parties to obtain a court order prohibiting the anticompetitive practice.
  • Section 7 [15 USC §18] prohibits mergers and acquisitions where the effect “may be substantially to lessen competition, or to tend to create a monopoly.”
  • Section 8 [15 USC §18(a)] requires advance notification to the federal antitrust agencies (DOJ and FTC) of large mergers or acquisitions and establishes a procedure for their review and approval. (Hart-Scott-Rodino).  Affected private parties may challenge mergers even if they have been approved by the antitrust agencies.  Many mergers are not reviewed by the antitrust agencies and those may also be challenged by affected private parties.

The Clayton Act also bans certain discriminatory prices, service, and allowances.

FTC ACT:

  • Section 5 [15 USC §45]  bans “unfair methods of competition” and “unfair or deceptive acts or practices.”  The FTC Act also reaches other practices that harm competition, but that may not fit into categories of conduct formally prohibited by the Sherman Act.  Only the FTC may sue under the FTC Act, but many states have similar statutes known as Little FTC Acts that allow private parties to sue.