By Elyse Dorsey (Wilson Sonsini Goodrich & Rosati) & Jonathan Jacobson (New York State Bar Association)
Courts and commentators have struggled hard for many decades to develop rules that separate the lawful conduct of a single firm from the unlawful. That struggle continues today. We trace a bit of the history of this struggle, summarize where the courts are today, and then offer a few suggestions for a path going forward. Particularly, we explain why examining both defendant’s conduct and effects on the plaintiff–as modern antitrust analysis does–is appropriate. Because the issue is exclusion, and because the fundamental concern in the raising rivals’ costs paradigm is whether a rival can achieve minimum efficient scale, some inquiry into whether the plaintiff can or cannot compete effectively against the tactics in question is essential. Conduct challenged as exclusionary may in fact prevent rivals from constraining the market power of a dominant firm. But the effects of that conduct, almost invariably, are ambiguous: Does the conduct prevent rivals from competing effectively or should it cause rivals to compete more effectively? Distinguishing between these two effects is essential because the one threatens consumer harm while the other yields consumer benefits. There is no one-size-fits-all test for distinguishing exclusionary conduct from aggressive but legitimate competition. But by placing at least some of the focus on whether an efficient rival could meet or defeat the tactics in question, important light is shed on the ultimate question of consumer harm. The law is moving in that direction, and that trend should continue.
Featured News
T-Mobile’s Acquisition of Ka’ena Corporation Receives FCC Approval
Apr 26, 2024 by
CPI
UK Regulator Announces Two New Senior Executive Appointments
Apr 26, 2024 by
CPI
Paramount Global and Skydance Media Near Merger Deal, Eyeing CEO Change
Apr 26, 2024 by
CPI
BHP Unveils £31bn Mining Megamerger Proposal with Anglo American
Apr 25, 2024 by
nhoch@pymnts.com
ByteDance Prefers Shutdown Over Sale of TikTok Amid US Ban Threats
Apr 25, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Economics of Criminal Antitrust
Apr 19, 2024 by
CPI
Navigating Economic Expert Work in Criminal Antitrust Litigation
Apr 19, 2024 by
CPI
The Increased Importance of Economics in Cartel Cases
Apr 19, 2024 by
CPI
A Law and Economics Analysis of the Antitrust Treatment of Physician Collective Price Agreements
Apr 19, 2024 by
CPI
Information Exchange In Criminal Antitrust Cases: How Economic Testimony Can Tip The Scales
Apr 19, 2024 by
CPI