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

Olympia Equipment Leasing Co v. Western Union

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Olympia Equipment Leasing Co v. Western Union (1986)

  • Withdrawal of assistance is not a violation – no duty to help competitors enter the market plus; there may be liability under theories of tort or contract, but not antitrust law!

  • Distinguishes Aspen Skiing – π has alternative means to acquiring the means to compete effectively  Monopolist may be guilty of monopolization if it refuses to cooperate w/a competitor in circumstances where some cooperation is indispensable to effective competition

  • Antitrust laws protect competition (consumers), not competitors!  U.S. courts are most likely to err on the side of nonintervention rather than undergo complicated analysis

  • Effect of Regulatory Scheme:

  • If the regulatory scheme and the antitrust laws can be applied concurrently and w/o conflict, then a violation of the antitrust laws should stand; however, if the two conflict, then the regulatory scheme, especially if enacted post Sherman Act, should be presumed to trump the antitrust laws

  • Scalia on Monopoly: Mere possession of monopoly power and the concomitant charging of monopoly prices in not unlawful  it is an important element of the free market system (induces new entry, innovation and economic growth)

  • Possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct

  • Scalia on Essential Facilities Doctrine: Court has never recognized or repudiated the doctrine;
     indispensable requirement for invoking the doctrine is the unavailability of access to the “essential facility”; where access exists, the doctrine serves no purpose

  • This statement would wipe out many past cases b/c they were predicated on the requirement that Δ d/n provide sufficient access rather than any access!

  • Regulatory scheme is an element to an essential facility inquiry

  • Scalia on Duty to Deal: feared that such a rule would induce competitors to form cartels, whether price-fixing or non-price-fixing; a regulatory scheme may lessen this impact, but there needs to be a general rule in place to function in the absence of a regulatory scheme

  • §2 d/n obligate competitors to take on affirmative duties to assist each other just b/c the possibility exists that there are more optimal means of doing business that will yield greater social gains (lower prices)

  • §2 is not concerned w/impact on consumers (monopoly prices) unless that conduct is on the route to monopolization

  • Terminal Railway – is it still good law? – courts today d/n use language of fairness and equality; d/n want litigation to be a deterrent to efficient policies

  • Whats left of Aspen Skiing? – excluding price and product predation (below) – if the acts are seriously exclusionary, which will likely raise rivals costs, and there is evidence that they will tend to increase monopoly power, and there is no pro-competitive justification, then there is a prima facie case and burden is shifted to Δ

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