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


Characterization – Market Division



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Characterization – Market Division


  • Old Cases – Topco (1972) and Palmer v. BRG (1990)

  • If competitors form an agreement to divide market, agreement is per se illegal (naked restraint)

  • Criticism: s/n classify such agreements as a naked restraint since they may have pro-competitive benefits  overruled by BMI

  • Based on full analysis of the market, assumptions about rational market actors and as an ancillary anticompetitive effect

  • What is the structure of the market? Must have market power to harm competition

  • What would happen if Δ tried to restrict output? Will other competitors increase output?

  • Elimination of competition and no attempt to restrict industry output  agreement must be designed to improve efficiency; no third possibility suggests itself! (Bork)

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