United States 2007
Score = 26
Governed by: Sherman Act, 15 U.S.C. § 1-7[1] (hereinafter referred to as “Sherman Act”), Clayton Act, 15 U.S.C. § 12-27[2] (hereinafter referred to as “Clayton Act”), Federal Trade Commission Act, 15 U.S.C. §41-51[3] (hereinafter referred to as “FTC Act”).
| Category | Subcategory | Score | Comment |
|---|---|---|---|
| Scope | Extraterritoriality | 1 | The effects doctrine says that US antitrust law applies to anything that has a “direct, substantial, and reasonably foreseeable effect” on US trade and commerce. |
| Remedies | Fines | 1 | §1 and 2 of the Sherman Act allows for fines and imprisonment for violations. |
| Prison Sentences | 1 | §1 and 2 of the Sherman Act allows for fines and imprisonment for violations. | |
| Divestitures | 1 | Courts are permitted to order divestiture of assets in certain situations.[4] | |
| Private Enforcement | 3rd Party Initiation | 1 | §4 of the Clayton Act allows 3rd parties to initiate proceedings. |
| Remedies Available to 3rd Parties | 1 | §4 of the Clayton Act allows anybody who has been injured to file a case for damages in district court. | |
| 3rd Party Rights in Proceedings | 0 | ||
| Merger Notification | Voluntary | 0 | |
| Mandatory | 3 | Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, prior notification to the FTC and Department of Justice is required. | |
| Pre-merger | 2 | Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, prior notification to the FTC and Department of Justice is required. | |
| Post-merger | 0 | ||
| Merger Assessment | Dominance | 1 | §7 of the Clayton Act prohibits mergers that create a monopoly. |
| Restriction of Competition | 1 | §7 of the Clayton Act prohibits mergers that substantially lessen competition. | |
| Public Interest (Pro D) | 0 | ||
| Public Interest (Pro Authority) | 0 | ||
| Other | 1 | Business failure is considered by the Brown Shoe, Co. v. United States decision.[5] | |
| Efficiency | 1 | Courts have recognized a limited efficiency defense.[6] | |
| Dominance | Limits Access | 1 | The court prohibits dominant firms that gain control over a cost reducing essential facility from taking exclusive access in order to ruin a competitor.[7] |
| Abusive Acts | 1 | §2 of the Sherman Act prohibits abusing a monopoly position. | |
| Price Setting | 0 | ||
| Discriminatory Pricing | 1 | §2 of the Clayton Act prohibits discriminatory pricing. | |
| Resale Price Maintenance | 0 | RPM is no longer per se illegal in the United States. Rather, courts will take a "rule of reason" approach to these abuses - essentially making most RPM legal.[8] | |
| Obstacles to Entry | 1 | Courts have looked at whether there existed barriers to entry in order to decide whether an action violated §2 of the Sherman Act.[9] | |
| Efficiency Defense | 1 | Rule of Reason analysis for violations of the Clayton and Sherman Acts are based on factors such as efficiency and benefits to the economy. | |
| Restrictive Trade Practices | Price Fixing | 1 | Price fixing agreements have been interpreted as illegal infringements of §1 of the Sherman Act by the courts.[10] |
| Tying | 1 | Tying arrangements have been interpreted as illegal infringements of §1 of the Sherman Act and §3 of the Clayton Act.[11] | |
| Market Division | 1 | Territorial allocation has been interpreted as “an aggregation of trade restraints.”[12] | |
| Output Restraint | 1 | Agreements to restrict competition and decrease output are interpreted as illegal.[13] | |
| Market Sharing | 1 | The courts have interpreted market sharing as illegal. | |
| Eliminating Competitors | 1 | The purpose of §2 of the Sherman Act is to thwart agreements meant to eliminate a competitor.[14] | |
| Collusive Tendering/Bid-Rigging | 1 | The court has found that bid rigging schemes can impair competition.[15] | |
| Supply Refusal | 1 | Group boycotts violate the Sherman Act and the FTC Act.[16] | |
| Efficiency Defense | 1 | Rule of Reason analysis for violations of the Clayton and Sherman Acts are based on factors such as efficiency and benefits to the economy. |
References
- ↑ Global Competition Forum website, http://www.globalcompetitionforum.org/regions/n_america/USA/us_saa.pdf
- ↑ Global Competition Forum website, http://www.globalcompetitionforum.org/regions/n_america/USA/The%20Clayton%20Antitrust%20Act.pdf
- ↑ Federal Trade Commission website, http://www.ftc.gov/ogc/about.shtm; Link to statute, http://www.law.cornell.edu/uscode/html/uscode15/usc_sup_01_15_10_2.html
- ↑ FTAA report, http://www.ftaa-alca.org/ngroups/NGCP/Publications/domlaws_e.asp
- ↑ Brown Shoe, Co. v. United States, 370 U.S. 294 (1962)
- ↑ See F.T.C. v. Staples, 970 F. Supp. 1066 (D.D.C. 1997).
- ↑ See Gamco, Inc. v. Providence Fruit & Produce Bldg, 194 F.2d 484 (1st Cir.1952).
- ↑ See Leegin Creative Leather Products, Inc. v. PSKS, Inc., Slip Op. No. 06–480 (Decided June 28, 2007).
- ↑ See U.S. v. American Tel. and Tel. Co., 524 F. Supp. 1336 (D.C.D.C. 1981).
- ↑ See Stewart & Stevenson Services, Inc., 56 FTC 523.
- ↑ See United States v. Jerrold Electronics Corp., 187 F. Supp. 545 (E.D. Pa. 1960), aff’d per curiam, 365 U.S. 567 (1961).
- ↑ See United States v. Sealy, 388 U.S. 350 (1967).
- ↑ See Broadcast Music, Inc. v. Columbia Broadcasting Co., 441 U.S. 1, 20 (1979).
- ↑ See McIntire v. Wm. Penn Broadcasting Co. of Philadelphia, 151 F.2d 597 (3d Cir. 1945).
- ↑ See Stolow v. Greg Manning Auctions, Inc., 258 F. Supp. 2d 236 (S.D.N.Y. 2003).
- ↑ See In re New Motor Vehicles Canadian Export Antitrust Litigation, 350 F. Supp. 2d 160 (D. Me. 2004).