Antitrust 1 Prof. E. Fox Fall 2004 1 I. Introduction to Antitrust Law 4 a. General Background 4

Characterization – Competitors’ Exchanges of Information (Prices)

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Characterization – Competitors’ Exchanges of Information (Prices)

  • Pro-competitive: if none of the competitors individually or together has market power; may help competitors meet market demand and push price down

  • Anticompetitive: may be evidence of a cartel or can make market susceptible to cartel behaviour and encourages oligopolies  information facilitates coordination

  • Advice to clients:

  • D/n permit clients to talk about price or output plans w/competitors unless in a joint venture

  • Disclose only aggregated past information through an independent party who is not going to pass the raw data on to each competitor

  • S/n exchange information if market is highly concentrated or susceptible to coordinated behavior  refer to merger guidelines for relevant factors

  • U.S. Gypsum (1978) (criminal case) – Rule of Reason

  • Old per se rule – U.S. v. Container Corp. of Am. (1969)

  • Exchange of prices, even in absence of agreement to adhere to a set price, violates §1 b/c the exchange of this type of information causes price uniformity

  • Lying buyer problem – Δ’s telephoned competitors to verify prices; tried to establish a meeting-competition defense to the Robinson-Patman Act (prohibits discriminatory prices)

  • Rule of Reason – violation of §1 b/c other, less anticompetitive, means of verifying competitor’s prices; rule of reason analysis applies b/c shared information can have pro-competitive effects

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