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ANTITRUST REALITIES IN THE NEW OBAMA ADMINISTRATION
Author Richard Solomon is a conflicts and crisis management lawyer with 50 years of experience in business development, antitrust and franchise law, management counseling and dispute resolution including trials and crisis management.
We have all been able to take a vacation from antitrust
concerns during the departing administration, with very few exceptions. The
page is turning on antitrust enforcement policy.
There are many structural and behavioral issues that will become relevant in
an antitrust context in the near term.
While structural antitrust concerns in a global economy are not what they
were in the 1960s when the “markets” were usually within national and
regional borders, structure remains relevant as the context in which
business practices brought into question will be measured. What may not be
threatening to competitive functions in heavily populated industries with
high dispersions of market share, will likely be seen in a different
enforcement light where few companies account for as much as 50 % of a
market. Market definitions are always very narrow in the minds of
enforcement agencies. Enforcement agencies seek market definitions that will
yield higher concentration ratios and enhance the likelihood that impact
will be seen as most severe, for obvious purposes.
Conspiracy cases will have top priority. They are easiest to prove, and no
structural proofs are required. With the advent of heavy infrastructure
appropriations, price fixing will be seen as extremely pernicious vis-ŕ-vis
the need to optimize cost efficiencies in a recovering economy.
With that enforcement profile as a given, getting a fast start on addressing
how to deal with potential and actual price fixing situations will be
mission critical. Those who wait in the wings until their possibly more
culpable competitors throw them under the enforcement bus will wish they had
been more pro active. We will go back to the time when highly respected
executives consider invoking Fifth Amendment rights because they failed to
recognize opportunities in reality mode price fixing prosecutions. Treble
damages class actions following government antitrust conspiracy cases will
Vertical price administration will have less interest to antitrust
prosecutors, especially in the transient popularity industries like fashion.
The Leegin case provided defenses to vertical price restraints sufficient to
remove it from the per se unlawful ambit. Only additional judicial gloss
will determine the extent to which business exigency defenses will be
allowed in other fact pattern, and no one wants to be the test case.
Antitrust compliance reviews are cheap at twice the price now. Waiting until
you receive a letter or subpoena announcing the opening of an investigation
regarding your industry will prove to be a very expensive mistake.
On a more theoretical plane, we should expect government to take a closer
look at the ways in which intellectual property rights can be used to
influence competitive energy in technology and business activity that is not
strictly within the scope of the claims of the intellectual property in
question. While tying cases may not be worth enforcement resources, other
restrictions in licenses will probably receive attention to the extent that
the government can find a market context where there is some concentration
of market power amongst few companies.
I seriously doubt that anti merger fever will erupt. There are too many
companies in distress, and the goals in the near term are to enable survival
more than to be concerned with merger resulting euthanasia of competitors. I
well remember the jokes about what would happen were General Motors to merge
with Chrysler. Nowadays the government would be thrilled if General Motors
merged with Chrysler.
Competitive practices today occur with greater perspectives upon
international trade. That means that treaty and multi jurisdictional issues
will get in the way of enforcement. EU antitrust policy will again be less
restrictive than US antitrust policy, though it may take a year or so for
that divergence to become noticeable.
Now is definitely the time to sort out where you are on potential antitrust