Miscellaneous

Antitrust and Consumers

Antitrust Enforcement and the Consumer The Department of Justice presents this web brochure explaining how antitrust laws affect and benefit the consumer.

Consumers and the Politics of Antitrust AAI President, Bert Foer, describes the consumer's stake in antitrust enforcement from the perspective of the "post-Chicago" school of thought, while giving a critique of Public Choice theory. Also, see The Consumer Interest and Antitrust Advocacy, a paper presented by Mr. Foer to the British International and Comparative Law Institute in London, May 11, 2004.

The Interface of Competition and Consumer Protection The complementarity of antitrust law with consumer protection (to prevent unfair and deceptive practices and allow a full range of informed choice) is discussed in this speech by Timothy J. Muris, Chairman of the Federal Trade Commission, given in October of 2002. [30 pp., PDF]

Antitrust and the Consumer: The Policy and Its Constituency Written when he was Director of the FTC’s Bureau of Economics (1972), Dr. H. Michael Mann looks at whether antitrust has failed consumers, in this article from the Antitrust Law & Economics Review (Vol. 5, No. 3), Mann argues that:

[T]he effectiveness of antitrust in protecting the consumer has fallen short for two reasons: (1) The law's emphasis on market conduct hinders its capacity to directly address the necessary conditions for economic power, dominance of a market by a few firms and difficult entry into that market and (2) whereas an antitrust attack is usually directed at a few in number, the benefits accruing from substantive antitrust action are widely dispersed over a large number of people. Unless the various consumer organizations can be persuaded to contribute some attention to the support of vigorous antitrust, including opposition to attempts to weaken the present scope of antitrust authority, it will remain an uneven contest.

Institute for Consumer Antitrust Studies - The Loyola University Chicago Institute for Consumer Antitrust Studies is a non-partisan independent academic center designed to explore the impact of antitrust law enforcement on the individual consumer and the public. The Institute's missions is to promote a comprehensive, inclusive view of the benefits of competition law and policy that includes, but goes beyond, prevailing narrow notions of economic efficiency. The Institute sponsors symposia, academic colloquia, and student fellowships.

The ICAS Consumer Guide to Antitrust is a concise, highly-readable, informative introduction and overview of antitrust for the layperson.

Consumer Alert Consumer Alert calls itself The Free Market Consumer Group and is concerned with excessive government regulation. CA's stated mission is to "represent average consumers as purchasers of goods and services in a dynamic and competitive marketplace."

EU Competition Policy and the Consumer This attractive, 30-page guide explains how the European Commission, together with national competition authorities, aims to ensure that there is free and fair competition in the European Union. It explains how they:

• take action against business practices which restrict competition; • examine mergers to see if they reduce competition; • open up competition in areas previously controlled by State-run monopolies; • vet financial support given to companies by EU national governments; • cooperate with other competition authorities around the world.

The INCSOC Consumer Movement The International Network of Civil Society Organisations on Competition was launched in Geneva in February, 2003. The Mission of the organization is "to promote and maintain a healthy competition culture around the world by coalition building among civil society [i.e.,private non-profit groups, especially those in the consumer movement] and other interested organisations."

Consumer Federation of America This leading consumer advocacy group frequently takes stances and prepares testimony, studies and reports on competition and antitrust-related issues. The CFA website is organized into industry categories (i.e., Finance, Food & Agriculture, Health Care, Utilities & Energy, Safety & the Environment), as well as subject areas, including Antitrust. The CFA Press Release page is organized chronologically and by subject area.

In the law review article Antitrust as Consumer Protection in the New Economy, CFA’s research director, Mark Cooper, argues that antitrust law must intervene to protect consumers and innovation in the New Economy. (72 pp., pdf) (52 Hastings L.J. 88)

Consumer Project on Technology Affiliated with Ralph Nader and directed by James Love, the antitrust efforts of the organization have been focused mainly on technology, mergers, and health care/intellectual property issues.

Consumers Union The publisher of Consumer Reports magazine, Consumers Union often takes public positions on antitrust issues important to consumers. Staffers have industry expertise in fields like product safety, health care, finance/insurance, telecommunications, air transport, electricity deregulation, and pharmaceuticals.

National Consumers League "The mission of the National Consumers League is to identify, protect, represent, and advance the economic and social interests of consumers and workers. The NCL is a private, nonprofit advocacy group representing consumers on marketplace and workplace issues, and is the nation's oldest consumer organization."

Category Captains/Management

Who's Minding the Store? In this article for Business2.0 (Feb. '03), Andrew Raskin looks at the growing use of "category management" techniques by retailers. "Overwhelmed by the complexities of today's marketplace, retailers are essentially letting vendors run much of their business. Here's the method to their madness." The article includes a set of useful links, and a chart on how to become a Category Captain, in which marketing guru Brian Harris breaks the art of category management into seven steps, showing how a joint Borders-HarperCollins team applied them to cookbooks.

The Category Captain and the Consolidating Food Industry, In his column for the 5/16/01 edition of FTC:WATCH, AAI President Bert Foer looks at the competitive issues raised by the use of category captains in the food industry. Reviewing the significance of the trend for merger analysis, Foer concludes:

The age of innocence is over. In the food industry, there is no longer any escaping the need to examine how mergers at one level can affect competition at another. The linkage of category captaincy and its potential effects on a market must now be confronted

Retail Merchandiser's Category Captains Program The broad use of category management in retail merchandising can be seen in this e-zine article, Recognizing Category Management Leaders In the Mass, Drug & Specialty Retail Industry, which highlights the magazine's choices for its 2002 Winners as the best category captains in dozens of product categories sold in mass marketing, drug and specialty stores, for each of three disciplines: merchandising effectiveness, operational effectiveness, and marketing innovation.

National Brand/Private Label Competition In this Working Paper presented at the 2002 American Economic Association annual meeting, Robert L. Steiner argues that the highly beneficial competition between national brands and private labels may be threatened by the actions of Category Captains. The Paper's full title is "The Nature and Benefits of National Brand/Private Label Competition." (Jan. 2002, 29 pp., pdf)

Impacts of Supply Chain Mangement on Competition This Working Paper by economics professors Wm. Hilfred and James Pinto, at the College of Business Administration, Northern Arizona University, examines numerous aspects of supply chain management, including category captaincy, and has an extensive bibliography. (April 2002, 14 pages, pdf)

The Conwood Snuff Case The opinion of the 6th Circuit Court of Appeals in Conwood Co. v. United States Tobacco Co., 290 F.3d 768 (6th Cir. 2002), can be found at this web page. Many law firms issued alerts to their clients describing the importance of the Conwood Case, including, Morrison & Foerster (July 2002) and White & Case. Attorney David Balto at W&C explains:

The Sixth Circuit's recent decision in [Conwood Co.] should be a wake-up call to in-house counsel and the defense bar. In Conwood, the Sixth Circuit affirmed a verdict of illegal monopolization for a retail category management program awarding over $1 billion in damages, the second largest verdict in antitrust history.

As articulated in the FTC Slotting Allowances Report, there are basically two competitive concerns in retail category management. First, there are concerns that a dominant manufacturer will use its role as category captain to exclude rival suppliers or significantly increase their costs of competing. Second, there are concerns that a category captain could use its role to facilitate collusion among the competing category manufacturers or retailers.

FTC Report on Slotting Allowances [Feb. 2002] Many of the issues raised by category captaincy and similar practices are discussed in this Report on the Federal Trade Commission Workshop on Slotting Allowances and Other Marketing Practices in the Grocery Industry. The Slotting Allowances Report is described in an e-alert from Arent Fox, dated Feb. 23, 2001.

FTC Grocery Industry Slotting Allowance Report [Nov. 2003] As described in this Press Release, dated Nov. 14, 2003, the Federal Trade Commission has issued its staff report to Congress, providing new information from the staff’s case studies about slotting allowances paid to certain retailers in certain geographic areas for five product categories: fresh bread, hot dogs, ice cream and frozen novelties, shelf-stable pasta, and shelf-stable salad dressing. Slotting allowances are one-time payments a supplier makes to a retailer as a condition for the initial placement of the supplier’s product on the retailer’s store shelves or for initial access to the retailer’s warehouse space. The Report (pdf 119 pp.) is entitled Slotting Allowances in the Retail Grocery Industry: Selected Case Studies in Five Product Categories, and is based on a small sample of detailed, anonymous case studies, and may not be representative of all retailers in the United States.

Key findings for the selected case studies include the following: (1) there is considerable variability across product categories, both in the likelihood of paying fees and in the magnitude of fees paid; (2) slotting fees can make up a large fraction of the revenues earned by some products in their first year; (3) most surveyed retailers reported that slotting allowances help defray costs associated with new product introductions; and (4) slotting allowances were less frequent and in lower amounts for products that did not go through retailers’ warehouses because suppliers delivered them directly to retailers’ stores.

Slotting allowances are only one component of complex and multi-faceted negotiations that take place when a supplier proposes a new product to a retailer; the discussions also typically address marketing research, the supplier’s promotional plans for the product, and advertising and promotional allowances and introductory discounts that suppliers may be willing to provide to persuade a retailer to carry the new product.

The study provides a brief overview of the prior research examining slotting allowances; sets forth the purposes and methodology of the FTC staff’s current study; discusses the qualitative information obtained, including anonymous details from the surveyed retailers’ documents, interviews, and written responses to interrogatories; and presents the surveyed retailers’ slotting data in tables and figures, describing in detail the study design and data collection and interpretation issues. The staff also analyzes areas where the information suggests consistencies and inconsistencies within or among retailers and between retailers and suppliers, and discusses its conclusions.

Divestiture and the Category Captain In this column from FTC:Watch ( #577, Nov. 2001), aai's Albert A. Foer argues that "the role of category captains in an industry may be highly relevant to the qualification of the buyer of assets to be divested under a settlement. This is not hypothetical, in that the current Nestle-Ralston merger directly raises the issue."

Shelf-Determination Subtitled "Kraft Foods is winning the war of the aisles. And causing plenty of casualties," this article for Forbes.com by Brandon Copple (04/15/02) examines the ever-more concentrated markets for food manufacturing and the methods used to gain market share, including category management.

Competitive Harm

Editor’s Note: The antitrust laws prohibit "anticompetitive conduct" -- that is, conduct that "significantly harms competition" or that "unreasonably restrains trade" or competition. Those simple phrases mask complicated (and in many instances unresolved or evolving) issues of definition and proof, which have great importance in determining whether particular conduct is lawful and whether the antitrust laws should intervene. Economics, politics, law, and ideology all play roles in defining the meaning of "competitive harm."

Below you will find resources explaining and espousing various perspectives on these core antitrust issues.

What is Competitive Harm? Exclusionary Practices and Anticompetitive Effects Originally published in 70 Antitrust Law Journal 371 (2002), this article by NYU Law School professor Eleanor M. Fox looks at several definitions of competitive harm that have held sway in various eras and nations (i.e., that the conduct must diminish aggregate consumer welfare by limiting output; or must significantly interfere with the overall competitive mechanism and market dynamics; or must injure rivalry from small and medium-sized firms). The article challenges the view now prevailing in American antitrust that conduct must be deemed efficient if it is not price-raising and output-limiting, and that prohibiting such conduct will therefore protect only competitors, rather than competition and consumers. (34 pp, pdf)

Antitrust in the Early 21st Century Subtitled "Core Values and Convergence," this address was delivered to an international antitrust conference in May ‘02, by Charles A. James, who was then head of the DOJ Antitrust Division. The speech traces the evolution of US antitrust theory and enforcement, explaining that "the course of U.S. antitrust over the past decades has been an ever-tightening focus on economic analysis, efficiency, and consumer welfare." Mr. James argues that antitrust analysis should be guided by sound economics, protect competition rather than competitors, and promote efficiency rather than attempt to "regulate results."

The Great Antitrust Debate Saying that the outcome is critical, this article from BusinessWeekOnline (06/26/00) asks whether antitrust will "Focus on innovation? Or stick to pricing issues?" The authors state that the key issue is whether antitrust will continue to play a limited role in economic policy, as it has for twenty years, or will move to center stage as a key defender of innovation and innovative firms in the New Economy?

ACT’s Perspective The Association for Competitive Technology describes its members as "industry leaders and emerging stars in computer software, hardware, consulting, and the Internet." Although ACT supports the existence of the antitrust laws, it disagreed with the government case against Microsoft, stating:

"The antitrust laws are intended to enforce and protect the competitive system. They must be administered with great care, however, because if distorted they can morph into their exact opposite; they can replace the results reached by the market. The political system is subject to pressure, and losers in the market- place may seek to induce government to reverse the results reached by the free play of consumer choice. Given these dangers, the role of antitrust must be cautious. It should be limited to clear targets, such as attempting to monopolize through price fixing or merger. Current antitrust enforcement in the IT area is going beyond these limits. It is posing serious risks to one of America’s most dynamic economic sectors."

Antitrust as Consumer Protection in the New Economy, Looking at "Lessons from the Microsoft Case," Mark Cooper, Director of Research, Consumer Federation of America, argues that antitrust law must intervene to protect consumers and innovation in the New Economy (72 pp, pdf). (52 Hastings L.J. 884)

Mueller’s Antitrust Overview Charles E. Mueller is a primary proponent of the "populist" view of antitrust, with its desire to protect and insure the rivalry created by small and medium-sized businesses. He writes in his Overview that "The objectives are two-fold: (1) To assure consumers the low prices and high quality that flow from effective competition [which requires at least ten firms in a market] and (2) to assure fairness--a level playing field--for the entrepreneurs who provide that vital competition." Mueller laments that the notions of "fairness" and "justice" can no longer be found in todays judicial decisions involving antitrust.

Anti-Trust Law For Dummies James V. DeLong. of the Competitive Enterprise Institute, points out in this piece (April 17, 2000) that antitrust’s most important term, "competition," is still not well-defined. He explains the implications for antitrust enforcement of the resulting confusion.

Ludwig von Mises Institute The website of the Mises Institute contains many articles analyzing the economics of antitrust from a classical liberal perspective. Believing that only the government creates monopolies, the Institute favors the abolition of all antitrust laws.

For example, in Anti-trust, Anti-truth Thomas J. DiLorenzo [June 1, 2000] scoffs at the Official History of antitrust, "which is that free markets are a source of monopoly power which must be restrained by enlightened antitrust regulators." Instead, he concludes that antitrust is a "protectionist racket" that harms efficient firms and consumers. Similarly, in Economists and Antitrust, (May 11, 2000) William L. Anderson notes that "The current debate on the fate of Microsoft has managed (once again) to cause division in the economics profession, even among those who call themselves free-market economists. Anderson contrasts the anti-antitrust Austrians with adherents of the Chicago School, "who agree that there should be some role for antitrust legislation in order to keep firms ‘honest’." Finally, Dominick T. Armentano has written, Antitrust: The Case for Repeal, which is introduced at the Mises website with the sentence: "This 100-page tour de force rips the intellectual cover off antitrust regulation to reveal it for what it is: a bludgeon used by businesses against their competitors."

What Should We Call the "New Antitrust"? D.C. attorney Robert A. Skitol suggests (May ‘02) that the focus of antitrust enforcement is too murky to predict its implications for the years ahead. After surveying the recent and current landscape of antitrust, he suggested, therefore, that the evolving successor to the Chicago School of Antitrust be tentatively called the "new Multipolar Moving-Around-in-Too-Many-Conflicting-Directions-to-Name, Highly-Fluid, Post-Hoc-and-Anyone's-Guess School of Antitrust Law." Skitol optimistically promises to have a shorter name when invited to speak again in five years.

Is Innovation King at the Antitrust Agencies? In this working paper from UC Berkeley’s Competition Policy Center (May 1, 2001), Richard Gilbert and Willard K. Tom explore "whether innovation has displaced short-term price effects as the focus of antitrust enforcement by the DOJ and FTC and, to the extent that it has, whether enforcement actions are any different as a result." The authors look at merger and non-merger cases, and ask whether current policy is consistent with the agencies’ 1995 Intellectual Property Guidelines.

In another CPC working paper (July 1, 2001) Antitrust Policy During the Clinton Administration, Robert E. Litan and Carl Shapiro explain the more aggressive antitrust enforcement during the Clinton years as resulting from an increased attention to "innovation competition" and intellectual property rights in the New Economy, as well as "a greater confidence of Clinton appointees in their ability to correct market failures by banning business practices and blocking mergers thought to harm competition."

Criminal Liability

AAI's Criminal Antitrust Primer - A comprehensive review of criminal antitrust law in the United States, prepared by the American Antitrust Institute.

DOJ Guides to Criminal Antitrust Issues - Includes the Department's guidelines relating to Price Fixing and Bid Rigging, Personal Leniency, and Corporate Leniency.

Relevant Statutes - The Sherman Act makes conspiracies in restraint of trade and monopolization felonies, enforceable by the Department of Justice.

U.S. Sentencing Commission - Antitrust Guidelines - Serious antitrust violations can result in criminal convictions and the U.S. Sentencing Commission promulgated these guidelines for judges to follow in criminal antitrust cases.

Sourcebook of Criminal Justice Statistics - Antitrust - This Page links to statistics and information on criminal cases in the U.S. Courts in which the primary offense is an antitrust violation.

The Factions (Schools) of Antitrust

Editor's Note: There are four major schools of thought in the United States concerning the relationship between government and economic markets, resulting in four corresponding approaches to the role of antitrust and competition policy. From political right to political left, they are: Libertarian, Neoclassical ("Chicago"), Post-Chicago, and Populist. Below, in quotations marks, are brief sketches by aai's President Bert Foer of each "school" or faction, followed by links to representative organizations. Also, see aai's Directory of Organizations, which attempts to classify groups that deal with antitrust and related issues across the political left/right divide.

Libertarian Approach to Antitrust.   "The libertarian believes that property rights are more or less holy, and therefore so are the law of contracts, and markets in which property rights can be voluntarily exchanged through contracts. Government's role in the economy should be limited to those public functions, like military defense, that cannot be organized in the marketplace."

• The Cato Institute - Libertarian nonpartisan public policy research foundation founded in 1977, which has argued that the antitrust laws are an obsolete and unnecessary interference with markets.

• The Heritage Foundation - Founded in 1973, Heritage is a research and educational institute "whose mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, etc." Among their projects is a website Regulation.org that provides conservatively-oriented information about regulatory topics. This website includes links to a variety of generally conservative think tanks and research organizations that sometimes participate in antitrust issues.

• Center for the Moral Defense of Capitalism - CMDC is an organization "dedicated to defending laissez-faire capitalism as the only moral social system." The Center's chairman, Robert W. Tracinski, has written that "Antitrust makes success a crime." The CMDC Antitrust Resource Page lists numerous organizations dealing with antitrust issues, categorizing them as "Pro-Capitalist," "Anti-Capitalist" (including aai), or "Mixed Economy."

• The Voluntary Trade Council Formerly known as Citizens for Voluntary Trade, VTC is a nonprofit research and education organization that opposes "violent state intervention in free markets," focusing "on the harm caused to individuals and businesses by the enforcement of antitrust and other 'competition' laws. It claims to apply "the principles of free market economics and rational ethics to contemporary antitrust policies and cases."

  On Oct. 1, 2005, S.M. Oliva, President & CEO of The Voluntary Trade Council, asked AAI President Bert Foer to remove our hyplerlink to VTC's website, saying "we consider you and your organization to be criminals, and thus your link to our website is considered an unfriendly act." Although under no legal obligation to remove the link from this Guide, we have done so. For an explanation of AAI's purported criminal status, and a link to the VTC's "pro-reason" website, see this weblog post.

• Competitive Enterprise Institute - Founded in 1984 by Fred L. Smith, Jr., CEI is a "pro-market, public policy group committed to advancing the principles of free enterprise and limited government." CEI believes that "consumers are best helped not by government regulation but by being allowed to make their own choices in a free marketplace." CEI's Antitrust web page contains a large cache of materials and links promoting its libertarian perspective on Antitrust issues.

• The Reason Foundation - The Reason Foundation, founded in 1978, "explores and promotes the twin values of rationality and freedom as the basic underpinnings of a good society." It advocates a free-market approach and is particularly interested in privatization. Its Links Section has an extensive compilation of research, education and advocacy organizations with a libertarian perspective.

• National Center for Policy Analysis - NCPA advocates private solutions to public policy problems. Its Antitrust Page has an extensive list of materials (with summaries and links) espousing a limited role for antitrust.

• Ludwig von Mises Institute The website of the Mises Institute contains many articles analyzing the economics of antitrust from a classical liberal perspective. Believing that only the government creates monopolies, the Institute favors the abolition of all antitrust laws.

  For example, see Anti-trust, Anti-truth by Thomas J. DiLorenzo [June 1, 2000]; Economists and Antitrust (May 11, 2000), by William L. Anderson; and Dominick T. Armentano's book, Antitrust: The Case for Repeal.

• The Ayn Rand Institute ARI asked to be listed in this Guide, as a group who "not 'often', but 'always' oppose[s] governmental and private efforts to eliminate monopolistic and anticompetitive practices." It's book, The Abolition of Antitrust, edited by Gary Hull (Jan. 2005), asserts that "antitrust laws—on economic, legal, and moral grounds—are bad," and provides arguments for their total abolition. The ARI search engine yields many articles and essays on similar themes.

The Neo-Classical or Chicago School   "Neoclassical free marketers, usually called the Chicago School because of its links to economists at the University of Chicago, believe that markets are the key to maximizing the society's productive output, that markets rarely fail, and that the state rarely makes things better."

• American Enterprise Institute - The American Enterprise Institute for Public Policy Research is "dedicated to preserving and strengthening the foundations of freedom-limited government, private enterprise, " etc. Founded in 1943, it has fifty resident scholars and fellows and a network of more than one hundred adjunct scholars, its fields of interest include economics, trade, regulatory, and legal policies.

• George Mason University - GMU sponsors a variety of conservative think tanks, that are involved in antitrust and regulatory issues, from a Chigago-school perspective (with a Virginia accent). For example: Mercatus Center (formerly, The Center for Market Processes); Program for Economics and the Law; and Center for the Study of Public Choice.

The Post-Chicago School   "Post-Chicago marketers, like neo-classical free marketers, tend to have a large amount of confidence in markets and approach regulatory issues with an orientation toward economic analysis; however, they find additional goals competing with efficiency, such as innovation and consumer choice, they are less sanguine that economic man acts "rationally" in the neo-classical sense, they observe market failures more often than the Chicago School, and they have more confidence in the ability of regulators to intervene in the presence of market failure."

• The American Antitrust Institute You are already on the AAI web site. AAI's mission and approach to antitrust are outlined on our about aai page, and in an Article from the Legal Times of Washington (11/02/98), titled "New Antitrust Institute Envisions a Post-Chicago Future," by aai’s Albert A. Foer and Robert H. Lande. Please browse or search our Archives for more information and materials.

• Competiton Policy Center UC Berkeley - The Center aims "to bridge the gap between academic analysis and policy formation" concerning competition policy, antitrust and regulatory issues. Housed within Berkeley's Haas Business School, the Center utilizes and helps disseminate the research and writings of Berkeley faculty members, a number of whom have served as Deputy Assistant Attorneys General for Antitrust at the U.S. Department of Justice. The Center's competition policy papers and publications are available as an online working paper series.

• Brookings Institute - Brookings is perhaps the major policy think tank of the political center, and occasionally publishes papers and books relating to antitrust issues. Robert Litan (a member of the AAI Advisory Board) is director of its Center for Law, Economics and Politics, which often conducts studies in areas relevant to competition policy and antitrust.

• Institute for Consumer Antitrust Studies - The Loyola University Chicago Institute for Consumer Antitrust Studies promotes a comprehensive, inclusive view of the benefits of competition law and policy that includes, but goes beyond, prevailing narrow notions of economic efficiency.

The Populist School   "The Populists tend to focus on institutions rather than on markets. They have little confidence in markets, worry about the social and political impact of large economic units in private hands, and have a high level of confidence in the potential of government to represent the interests of the individual and small entrepreneur."

• Antitrust Law & Economics Review - In this "Antitrust Overview," Charles E. Mueller gives a short populist lesson on the Law, Economics, History and Politics of Antitrust. The Overview is part of his "anti-monopoly journal," The Antitrust Law & Economics Review, which can be reached through that web page.

• Center for Study of Responsive Law - The Center is a nonprofit, Ralph Nader organization that encourages "the political, economic and social institutions of this country to be more aware of the needs of the citizen-consumer." The website has links to other organizations and sources that reflect Nader's "New Populism," including the call for stronger antitrust enforcement to help disperse economic and political power among all Americans.

• Organization for Competitive Markets - OCM is a multidisciplinary nonprofit group that provides research, information and advocacy towards its stated goal of increasing competition in the agricultural marketplace and protecting those markets from abuses of corporate power. OCM views the current consolidation of agriculture as market failure resulting in misallocation of resources and the destruction of rural economies and culture.

Humor for Antitrusters

If antitrust law, policy or enforcement leaves you needing a laugh, we suggest the following sites.

Daryl Cagle's Professional Cartoon Index (Slate.com) - Compilation by Slate's Daryl Cagle of professional editorial cartoons on many topics in the news -- e.g., politics and government, economics, American life and lifestlyles. Including such antitrust and competition subjects as:

Airline Mergers

AOL/Time Merger

Microsoft-Gates-DOJ Case Hundreds of editorial cartoons from across the nation on the Microsoft case, Bill Gates, and DOJ.

Humorous Critiques of Libertarianism Mike Huber’s "Critiques of Libertarianism" web site contains a Humor, Satire, and Quotations page with many annotated links to like-minded sites and materials and to Huber’s humorous contributions.

Wally Badgett's Political Satire Cartoon Gallery - Collected by the Cattlemen's Legal Fund on their "nobull" website.

Intellectual Property and the Antitrust Laws

Antitrust Guidelines for the Licensing of Intellectual Property - These guidelines were issued jointly by the FTC and DOJ in 1995 and provide a good introduction to the topic of antitrust enforcement and intellectual property.

ABA AT-IP Committee Resources The webpages of the Intellectual Property Committee of the ABA Antitrust Section have a wealth of resources on IP and antitrust. For example, you can find a Newsletter, along with a Hot Topics page. The large compendium entitled Resources Relating to Intellectual Property and Unilateral Refusals to Deal (Revised July 10, 2003) is also available, as is the Committee’s Resources Relating to Antitrust and Standards Setting, which is an extensive list of case summaries, articles, DOJ and FTC advisory opinions and business review letters relating to Antitrust and Standards Setting (June 4, 2003).

Executive Summary of the Antitrust Laws: Patents and Antitrust - Brief introduction to the topic by attorney Richard M. Steuer, of Kaye, Scholer, for FindLaw.

The Intellectual Property Guidelines Five Years Later Asking "Is Innovation King at the Antitrust Agencies?" this working paper by Richard Gilbert and Willard K. Tom (May 1, 2001), for the Economics Dept., UC, Berkeley, explores whether enforcement actions in the area of intellectual property and innovation have been consistent with the 1995 DOJ/FTC Antitrust Guidelines for the Licensing of Intellectual Property.

WTO: TRIPS Home Page - This web page covers activities and information related to the World Trade Organization's TRIPS agreement (trade-related aspects of intellectual property rights) agreement.

Compulsory Licensing and Health Care - Sponsored by the Consumer Project on Technology, this site has is designed to be relevant to the debate over compulsory licensing of essential medical technologies. There are also broader, background discussions of compulsory licensing of intellectual property from other areas.

Intellectual Property Links from Law.com - A good place to start for general resources on IP, trademark, patents, copyright, etc.

Commentary on DOJ's IP Guidelines - Attoney R. Mark Halligan explains the DOJ Guidelines on his Trade Secrets Homepage website.

Issues at the Intersection of Antitrust and Intellectual Property - This is a well-footnoted speech by then-Chairman of the FTC, Robert Pitofsky (June, 2000) delivered to an aai conference.

IPWatchdog.com This project by Patent attorney and law professor Gene Quinn is a well-organized resource for materials on intellectual property, Internet and Antitrust law, and includes frequently-updated comments on cases and other news. The site offers a weekly newsletter by email, and an Antitrust Page.

IP Misuse Doctrine and Antitrust In an ABA Source, article (Jan. ‘03, 8 pp. pdf), entitled "Harmonization of the IP Misuse Doctrine and Antitrust Law," authors Jeffrey B. Fromm and Robert A. Skitol attempt to resolve the tension between the old and modern doctrines.

IP Links from AIPLA The American Intellectual Property Law Association has compiled IP-related links including national and international organizations, laws, regulations, and materials.

U.S. Patent and Trade Office Web Site

FTC Report on Balancing Competition and Patent Policy This press release describes the Federal Trade Commission Report To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, which was issued on October 28, 2003. The 315-page Report [pdf 2.28MB] is available here, and its Executive Summary [PDF 149KB] here. As the press release explains, the Report focuses on "how to promote innovation by finding the proper balance of competition and patent law and policy. Although both competition in markets and patents for inventors can work together to foster innovation, the report states that each policy requires a proper balance with the other to do so."

U.S. Copyright Office

DigitalConsumer.org The website of this consumer advocacy group, which promotes fair-use rights to digital media, has current news on copyright issues, and a Consumer Technology Bill of Rights, along with links to background resources and an extensive FAQ section.

IP@The National AcademiesThis website serves as a guide to the National Academy of Sciences' extensive work on Intellectual Property and a forum to discuss ongoing work. The navigation guide divides subject matter into topics and sectors, and the site has a search option. Click here to go to the site's Antitrust page.

Corante: Tech News Filtered Daily As its name implies, this website brings together important news, analysis and commentary concerning the tech industry (covering e-business, intellectual property, communications, open access, related law and policy, and much more), with much of its content coming from high-quality weblogs. E.g., Ernest Miller's analysis (June 24, 2004) of the INDUCE Act.

AAI Amicus Brief in FTC Rambus Appeal, in which AAI Fellow Jonathan Rubin Proposes a Framework for Disclosures of Intellectual Property in Standards Setting in Markets Where Compatibility Requirements Are High (May 17, 2004).

Joint Ventures, Trade Associations & Organizations

DOJ/FTC Joint Venture Guidelines - This 39-page pdf document provides a useful anaylsis of the many issues raised when competitors collaborate in joint business ventures.

FTC v. Polygram Holding Corp et al. (Docket 9298, July 28, 2003) In this important decision, the FTC upheld charges that several subsidiaries of Vivendi Universal, S.A. illegally agreed with Warner Communications Inc. to restrict competition for audio and video products featuring "The Three Tenors" - Jose Carreras, Placido Domingo, and Luciano Pavarotti. In its 61-page opinion, authored by Chairman Timothy J. Muris, the Commission ruled that PolyGram Holding, Inc. (a predecessor to Vivendi) improperly agreed with Warner to curb discounting and advertising to boost sales of recordings that the two companies jointly had distributed based on the tenors’ concert in Paris during the 1998 soccer World Cup.

As noted in a detailed press release, Chairman Muris emphasized that "[n]o analytical exercise is more important to U.S. competition policy than defining the bounds of acceptable cooperation between direct rivals." Therefore, the opinion gives an extensive history and discussion of the analysis appropriate in determining the legality of joint competitor conduct. The Polygram joint venture was found here to have enganged in inherently suspect restrictions on pricing and advertising that clearly harmed competition without a valid justification.

The Association Antitrust Update - This site is hosted by the Detroit law firm of Fraser Trebilcock, and is devoted "exclusively to the concerns of associations and organizations." It has summaries of relevant cases, but more detailed analysis is available only to firm clients or subscribers to the site (free 30-day trial subscription is available).

Executive Summary of the Antitrust Laws: Horizontal Restraints Among Competitors - A brief introduction to the topic of Trade Associations is included in this summary by attorney Richard M. Steuer, of Kaye, Scholer, for FindLaw.

ETSI Guide to Competition Law - Written as a Competition Law Compliance Program for ETSI (the European Telecommunications Standards Institute), this material contains a concise overview of competition laws, focusing especially on matters of interest to an association of competitors engaged in standard-setting.

LG&U on Antitrust and Consortia This site was created and is maintained by Lucash, Gesmer & Updegrove, a technology law firm based in Boston, Massachusetts. It includes a general Introduction to Antitrust Law, with discussion of statutes, regulations, guidelines, and enforcement agencies, plus extensive summaries (with links) of cases, articles and essays related to consortia and joint ventures.

National Cooperative Research and Production Act of 1933 Congress created this statutory "safe harbor" to encourage some types of innovative research and production activities. NCRPA clarifies how antitrust laws apply to joint ventures, such as research consortia, and encourages joint research and development by providing some protection to participants in these activities who follow the Act’s filing requirements and conduct limitations.

Antitrust Implications of Negotiating with Third Party Payers This short monograph, written for the American Association of Physician Assistants by legal counsel at Foley, Lardner, Weissburg and Aronson, Inc. explains the ramifications for professional groups of the "basic tenet of federal and state antitrust law . . that otherwise competing sellers of services cannot directly, or indirectly (e.g., through a professional association), agree among themselves on price or price related terms at which they will sell their services. " Among topics discussed are dealing with government entities, taking surveys, and lobbying.

Robinson-Patman Act/Price Discrimination

Executive Summary of the Antitrust Laws: Price Discrimination - Brief introduction to the topic by attorney Richard M. Steuer, of Kaye, Scholer, for FindLaw (with sections on The Fundamental Elements of Violation, The Statutory Defenses, Promotional Allowances, Buyer Liability)

RPA MALL - This quirky, "graphics-free, text-only" site has some useful information on Price and Service Discrimination, Robinson-Patman and Related Acts. It is the project of NY attorney Carl E. Person, and includes the texts of the relevant statutes, essays on topics such as who has a claim under RPA, deciding whether to sue, and how to prove damages, plus many relevant links.

FTC GUIDES to Advertising & Promotional Allowances - The purpose of the so-called "Fred Meyers" Guides is to provide assistance to businesses seeking to comply with sections 2 (d) and (e) of the Robinson-Patman Act, relating to allowances for advertising and other promotional services.

Benefits of Price Discrimination This thoughtful article, entitled "The Frequently Forgotten Benefits of Price Discrimination," is culled from NERA's journal Antitrust Insights (March/Apr 2002), and is 6 pages in pdf format.

Small Business

Small Business Legislative Council - SBLC is comprised of small business and professional associations and works to achieve an antitrust policy that promotes "economic diversity" and "a vibrant and competitive small business economy," to help assure quality, selection and innovation.

Small Business Survival Committee - Calling itself "America's premier, small business advocacy grassroots organization," this group represents an anti-regulation and anti-antitrust viewpoint from the small business perspective.

SBA Competition Studies - The Small Business Administration's Office of Advocacy frequently sponsors research on competition issues related to small businesses. Summaries of such research since 1990, and recent full reports, are accessible from this web page.

Vertical Restraints

FTC Staff & AAI Debate Vertical Restraints FTC Staffers James Cooper, Luke Froeb, Dan O'Brien, and Michael Vita wrote a Paper critical of antitrust enforcement efforts aimed at vertical restraints. AAI's economists Bill Comanor, Mike Scherer, and Bob Steiner, then wrote a critique of the Paper. The FTC staff countered with a response, which was followed by an AAI Final Reply. In May 2005, the ABA Antitrust Section's e-journal, The Antitrust Source, reviewed the FTC and AAI papers, and added a discusion of modernization reforms by the European Commission in 2003 involving vertical restraints.

Executive Summary: Vertical Restraints - This essay from FindLaw, by Kaye Scholer attorney Richard M. Steuer, includes sections on Vertical Price Fixing, Non-Price Vertical Restraints (such as Tying and Exclusive Dealing), Refusals to Deal.

Pitofsky on Vertical Restraints - In this 1997 speech, then-FTC Chairman Robert Pitofsky gives a detailed analysis and history of antitrust enforcement efforts involving vertical restraints.

Vertical Issues -- The Federal View In this speech (March 9, 2000), FTC Commissioner Sheila F. Anthony describes three cases that had been recently addressed by the FTC. She notes that "One common thread running through all three cases is the concept of foreclosure. Foreclosure occurs when a vertical integration closes off some or all of a market to competitors thereby permitting the exercise of market power." How foreclosure might occur and how it can injure competition and consumers is addressed in the context of each case.

The Antitrust Economics of Tying: A Farewell to Per Se Illegality Christian Ahlborn, David S. Evans, and Jorge Padilla describe the main features of U.S. and E.C. tying law and consider their recent evolution, in this piece from the AEI-Brookings Joint Center. Drawing on the findings of the economic models developed by the Chicago and post-Chicago Schools, the authors conclude by proposing a three-step test to implement rigorously a rule-of-reason analysis to tying cases.

Distribution Channels - This article, entitled "Understanding Antitrust and Related Regulatory Aspects of Building Distribution Channels," was written by Andrew J. Sherman, Partner, McDermott, Will and Emery, for the Entreworld website.

Antitrust Scrutiny of Business-to-Business Web Sites Written by Prof. Shubha Ghosh, in the Nov. 2000 edition of GigaLaw.com, this article examines why B2B web sites should be wary of Antitrust Laws, focusing on issues such as the determination of price fixing and definition of relevant market. In Jan 2001, Prof. Ghosh wrote a follow-up piece on B2B Electronic Marketplaces, with analysis of an FTC Staff Report (Oct. 2000) titled "Entering the 21st Century: Competition Policy in the World of B2B Electronic Marketplaces."

http://www.antitrustinstitute.org/links/state.cfm

STATE ANTITRUST RESOURCES

State Antitrust Statutes from C. H. Guernsey The economic consulting group of C.H. Guernsey & Co. has compiled a very useful set of links to the antitrust laws of every state.

Parens Patriae Statute - Congress has given state attorneys general parens patriae power -- the authority to bring civil suits in Federal court on behalf of the residents in their state for violations of Section 1 through 7 of Title 15 (The Sherman Act, and Sec. 7 of the Clayton Act involving mergers) (15 U.S. Code Sec. 15c.).

In an Amicus Brief to the 1st Circuit appeals court, in Wal-Mart Stores v. Rodriguez, AAI argues that a Federal district court cannot enjoin a State from suing under a State's Antitrust Statute, even after the FTC permitted the challenged merger to proceed (Kevin O'Connor of the AAI Advisory Board on the brief). The brief describes the complementary federal-state antitrust enforcement scheme set forth and protected in a long line of judicial decisions. (Feb. 2003, 28 pp., pdf)

NAAG (National Association of Attorneys General) - Attorneys General in each state enforce state antitrust statutes, and increasingly file suit jointly. NAAG's site has a master list for contacting state AGs. You can also find information and materials relating to current antitrust initiatives of NAAG and its members. Documents from the Multistate plaintiffs' suit against Microsoft are also available on the site.

State Antitrust Chiefs - This web page from the ABA's Antitrust Section lists the Antitrust Chief in each state Attorney General office, and includes e-mail and post office addresses.

The State Center On January 3, 2006, The State Center launched a website to further its mission, which is "to enhance consumer welfare by supporting the fair, effective and vigorous enforcement of antitrust and consumer protection laws at the state level." The Center provides resources to assist State Attorneys General in the assessment and prosecution of enforcement matters. It is "independent of any other organization" and "bipartisan in outlook and approach." The State Center's first Executive Director is Stephen D. Houck, the former chief of the New York AG antitrust unit. The website contains an online grant application form, and information for AAG's seeking travel stipends to attend relevant conferences.

AG Watch This weblog is "the Eye on Attorneys General" of the American Enterprise Institute's Federalism Project. "Through its AG Watch, the Federalism Project monitors and comments on the increasingly active role of state attorneys general" -- monitoring "their upside-down federalism." The Project holds conferences and publishes studies and a newsletter.

Columbia Law School's AG Program The National State Attorneys General Program at Columbia Law School was inaugurated on March 1, 2004. "The Program's symposia, sponsored research and publications provide a forum and resources to state attorneys general, academics and others about issues of significance to the work of state attorneys general." The website offers access to many relevant resources, including an AG Library of papers produced by law students and others.

Tierney's WeblAG/Weblog This site is the weblog of James E. Tierney, the Director of the National State Attorneys General Program, at Columbia Law School. The weblog presents information and commentary on current activities by or affecting state attorneys general.

For comprehensive links to information on state government, we suggest:

State and Local Government on the Net - These pages from Piper Resources offer a frequently updated directory of links to government sponsored and controlled resources on the Internet (including court websites) Each state is covered separately, with listings broken down into the various branches and units of government.

State and Local Government Resources via THOMAS - This Library of Congress internet resource lists Meta-Indexes for State and Local Government Information.

State Law Search Page (WashLaw) This page from the WashLaw Web Site (Washburn Univ. School of Law) allows the user quick access to a number of search options for finding materials related to the laws, legislation, agencies, and courts of each state.

StatesNews.org Sponsored by the Council of State Governments, this site focuses on news about and from the states. The most recent news items from individual states are posted as they are received, and news headlines are also listed by topic. .A full week of State news is archived, by date.

NLJ’s State Laws on the Web This comprehensive listing on the National Law Journal site was adapted from the book The Best (and Worst) Legal Sites on the Web, by Robert J. Ambrogi.

Kautz Directory of States Compiled by attorney Frank J. Kautz, II, the Directory includes links to state homepages, courts, statutes, bar association homepages, consumer protection resources, and more.

[Editor's Note] State and Local Bar Associations: State legislation relating to antitrust, consumer protection and trade regulation is often closely followed by state and local bar associations. Immediately below are links to a number of state and local bar associations with active antitrust programs. If you are interested in a state not represented on this list, you can locate its bar assocations through WashLaw's Links to State and Local Bar Associations or the Kautz Directory listed above, to see whether relevant resouces are available online.

Association of the Bar of the City of New York

The Chicago Bar Ass'n - Note: most substantive documents are only available to CBA members.

The District of Columbia Bar

The Florida Bar

The New York State Bar Association

The Washington State Bar Association