1 / 9

Antitrust Treatment of Dominant Firms: Is the Atlantic Getting Wider or Narrower?

Antitrust Treatment of Dominant Firms: Is the Atlantic Getting Wider or Narrower?. Ken Glazer ABA Antitrust Section March 31, 2005. How Wide Is the Ocean?. In the area of “vertical” monopolization . . . The ocean is as wide as ever if not wider. Different Tones. E.U. approach

uriel-witt
Télécharger la présentation

Antitrust Treatment of Dominant Firms: Is the Atlantic Getting Wider or Narrower?

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Antitrust Treatment of Dominant Firms: Is the Atlantic Getting Wider or Narrower? Ken Glazer ABA Antitrust SectionMarch 31, 2005

  2. How Wide Is the Ocean? • In the area of “vertical” monopolization . . . • The ocean is as wide as ever if not wider.

  3. Different Tones • E.U. approach • Dominant firm has “special responsibility not to allow its conduct to impair genuine undistorted competition.” • Emphasized in Michelin II and BA • U.S. approach • “The successful competitor, having been urged to compete, must not be turned upon when he wins.” (Learned Hand) • “Even an act of pure malice by one business competitor against another does not, without more, state a claim under federal antitrust laws.” (Brooke Group)

  4. Predatory Pricing • Brooke Group (USSC) • Below-cost pricing • Plus plausible recoupment • American Airlines rejected attempt to broaden test from AVC. • Tetra Pak (ECJ) • Not necessary to prove that dominant firm had realistic chance of recouping

  5. “Consensual” Exclusive Dealing • E.U. • Presumptively illegal • E.g., Hoffman-La Roche; AKZO • U.S. • Rule of reason • Microsoft • Many upheld (e.g., CDC v. IDEX) • E.D. struck down recently in Geneva Pharmaceuticals v. Barr Labs

  6. “Coerced” Exclusive Dealing (aka Refusal To Deal) • Strong presumption of illegality in E.U. • British Plasterboard • Weak presumption of illegality in U.S. • Lorain Journal • Dentsply • Greater willingness to examine alternatives

  7. “Fidelity” or “Loyalty” Rebates • Virtually per se illegal in E.U. • Reaffirmed by CFI in Michelin II • In the U.S. • At worst, rule of reason governs • At best it is per se lawful (Concord Boat) • Canada Pipe followed rule of reason approach.

  8. Volume Rebates of Various Kinds • Illegal in E.U. if they have “loyalty-inducing” (MichelinII) or “fidelity-building” (British Airways) effect. • Award for increasing purchases over some previous time period (British Airways) • Award for purchasing higher amount on a scale applicable to all customers (Michelin II) • Lawful in the U.S. unless predatory under Brooke Group

  9. Concluding Thoughts • E.U. test: fidelity-inducing or loyalty-enhancing • Very different from U.S. test • But European Comm’n is currently rethinking its approach to dominance. • Will that include proof of dominance?

More Related