Term
| When is the per se analysis appropriate? |
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Definition
| "Proof that there was an agreement, that its purpose was to raise prices and that it caused or contributed to a price rise is proof enough…of a conspiracy under section 1." (Saucony Vacuum) |
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Term
| Historical per se violations? |
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Definition
1. Horizontal refusals to deal based upon price (Fashion Originators guild)
2. Horizontal territorial restrictions
3. Mandatory pricing structures among a professional organization (Maricopa county medical assn)
4. Mandatory distributor assingments (Saucony Vacuum) |
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Term
| When is a quick look analysis appropriate? |
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Definition
| "When a person with a rudimentary understanding of economics could conclude that the arrangement would harm the competitive process" (Cal Dental) |
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Term
| Steps of the quick look analysis |
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Definition
1. The economic harm caused by the activity is presumed.
2. Defendant must demonstrate harmlessness or procompetive effects.
3. Court makes a determination |
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Term
| When is the full rule of reason analysis appropriate? |
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Definition
| When a case cannot be properly disposed of with a quick look or per se analysis. |
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Term
| What is the rule of reason analysis? |
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Definition
| Essentially a totality of circumstances test. The court must consider the facts particular to the business, the nature of the restraint, the evil believed to exist...and all relevant facts. |
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Term
Basic Framework for a joint venture
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Definition
1. Is it a joint venture between two or more actors or is it a single economic entity? (Copperweld, Sealy)
2. Is the action exclusionary?
3. If yes, does the joint venture possess enough market power that their exclusion of an entity is an anticompetitive act? (Associated press, Visa)
4. Does the joint venture have a duty to deal under the essential facilities doctrine (Visa, Terminal Railways). |
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Term
| Essential Facilities test |
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Definition
1. Must be a positive showing that the monopolist controls and essential facility or downstream competition.
2. Must be a facility that a competitor cannot reasonably create on his own.
3. Must be a an actual or constructive denial by monopolist.
4. Must have been feasible to allow the competitor access. |
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Term
| What group boycotts fail under a per se analysis? |
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Definition
1. Boycott of price cutters (Fashion Guild)
2. Organized boycott of one competitor (Klor's)
3. Refusal to deal with city attorney's office by a layer's association (SCTLA) |
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Term
| What horizontal agreements receive a full rule of reason analysis? |
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Definition
1. Expulsion of a member by a collective buying association (Northwest stationers)
2. Agreement between non-competitors (Nynex)
3. Concerted refusal to submit materials to insurance companies (Fails under rule of reason, though Indiana Federation of Dentists) |
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Term
| "Sham Exception" factors to the Noerr-Pennington doctrine. |
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Definition
Baseless or repetitive actions brought with the intent to exclude rivals are not subject to Noerr-Pennington immunity.
1) Litigation must be objectively baseless
2) The baseless lawsuit attempts to interfere with business by governmental process.
3. Does the defendant's action have the effect of a substantive antitrust violation? |
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Term
| What is the State action doctrine? When can a private actor receive antitrust immunity under this doctrine? |
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Definition
State action doctrine: State antitrust laws cannot be used to interfere substantially with a state's decision to elimate competition in a certain market. (Parker v. Brown)
A private actor is immune from antitrust liability when:
1) The private action occurred under clearly articulated and affirmatively expressed state policy of displacing competition with regulation
2. The state actively supervises the private conduct.
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Term
| General rule for parallel conduct in an oligopoly |
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Definition
| Parallel conduct within a oligopolist market can be support a finding of Sherman 1 horizonal conspiracy; however parallel conduct alone is not sufficient. |
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Term
| How can a plaintiff prove parallel conduct amounting to a conspiracy? |
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Definition
1. Evidentiary showing Blomkest
2. Expert Testimony Blomkest
3. Self-Harming conduct Blomkest (Including evidence from a jury hearing or a refusal to testify Corn Syrup) |
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