2003 Annual Review of Antitrust Law Developments

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American Bar Association, 2004 - Law - 450 pages
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Antitrust Law Developments and its annual supplements have been recognized as the most authoritative and comprehensive research tools for practitioners, The 2003 Annual Review of Antitrust Law Developements surveys and describes all the significant developments during 2003.
 

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Contents

RESTRAINTS OF TRADE
1
B Elements of a Section 1 Violation
2
1 Inferring Agreement Among Competitors
3
2 Inferring a Vertical Agreement
8
INTRAENTERPRISE CONSPIRACY
9
c TRADE ASSOCIATION CONDUCT AS CONCERTED ACTION
12
2 Proof That the Restraint Affects Interstate Commerce
13
3 Proof That the Restraint of Trade Is Unreasonable
14
2 Choice of Remedy
209
4 Criminal Investigations
212
b SEARCH WARRANTS
213
c LENIENCY
214
1 Injunctive Remedies
215
a CONSENT DECREES
216
3 Intervention in a Consent Decree Proceeding
217
E Criminal Litigation
218

a THE PER SE RULE
15
b THE RULE OF REASON
17
1 Proof of Anticompetitive Effect
19
a The Quick Look
20
b Market Analysis
21
2 Procompetitive Effects
22
3 Balancing the Competitive Effects
23
4 Enforcement Agencies Approach
24
C Horizontal Restraints of Trade
26
b ARRANGEMENTS AFFECTING PRICE SUBJECT TO THE RULE OF REASON
29
2 Horizontal Arrangements among Competitors to Divide Markets or Allocate Customers
30
3 Horizontal Arrangements Constituting Concerted Refusals to Deal
32
a SPORTS LEAGUES AND ASSOCIATIONS
33
4 Other Horizontal Arrangements
36
b PROGRAMS AND PRACTICES AFFECTING RETAIL PRICE
37
2 Vertical Nonprice Restraints on Distribution
38
b DEALER TERMINATIONS AND OTHER REFUSALS TO DEAL
40
3 Vertical Nonprice Restraints on Purchasing
42
b Proof of Conditioning
43
c Sufficient Economic Power
45
d Substantial Amount of Commerce in the Tied Market
47
b EXCLUSIVE DEALING ARRANGEMENTS
48
MONOPOLIZATION AND RELATED OFFENSES
51
2 Evidence of Monopoly Power
55
b OTHER EVIDENCE RELEVANT TO EXISTENCE OF MONOPOLY POWER
56
c REGULATION
57
C Willful Acquisition or Maintenance
58
1 Vertical Agreements That Foreclose Competition
59
2 Predatory Pricing
62
a PRICECOST ANALYSIS
64
b MARKET STRUCTURE AND RECOUPMENT
65
c MEETING COMPETITION DEFENSE
66
4 Refusals to Deal
67
b THE ESSENTIAL FACILITIES DOCTRINE
69
5 Monopoly Leveraging
73
6 Anticompetitive Litigation
74
7 Other Anticompetitive Conduct
77
D Attempt to Monopolize
78
2 Specific Intent
80
E Conspiracy to Monopolize
83
F Shared Monopoly
85
MERGERS AND ACQUISITIONS
87
1 Scope of Section 7
89
B Horizontal Mergers
91
b SIGNIFICANCE OF MARKET SHARE AND CONCENTRATION
93
2 Determining and Assessing Ease of Entry
97
3 Assessing Other Factors Bearing on the Competitive Impact of Increased Concentration
99
4 Partial Ownership Issues
100
C Federal Agency Enforcement
101
1 Premerger Notification
102
2 Challenging Consummated Deals
103
3 Negotiated Settlements
104
4 Preliminary Relief
108
5 Federal Intervention
112
D Enforcement by Private Parties
113
E Enforcement by State Attorneys General
118
F Interlocking Directorates
121
JOINT VENTURES
123
C Types of Joint Ventures
125
2 Joint Purchasing Arrangements
128
D Analysis of Collateral Restraints
129
2 General Principles Governing Collateral Restraints among Joint Venture Members
130
ROBINSONPATMAN ACT
135
C Price Discrimination Prohibited by Section 2a
136
2 The Requirement of Sales to Two or More Purchasers
137
3 The Requirement of Commodities
138
4 The Requirement of Like Grade and Quality
139
b SECONDARY LINE INJURY
140
D The Brokerage Provision
141
1 Scope of Sections 2d and 2e
142
F Buyer Liability
143
RELEVANT MARKET
145
b CROSSELASTICITY OF DEMAND
150
c DIFFERENCES IN GRADE OR QUALITY
151
2 Submarkets
152
3 Service Markets
153
4 Limiting a Market to a Single Manufacturers Product
154
5 Department of Justice and Federal Trade Commission Approaches to Product Market Definition
156
C Geographic Market Definition
157
D Relevant Market Pleading and Practice
162
2 Motions for Summary Judgment
164
THE FEDERAL TRADE COMMISSION
167
B Section 5 of the FTC Act as an Antitrust Law
168
b MOVER TRADE ASSOCIATION CASES
169
c UNOCAL
170
d SCHERINGPLOUGH CORP
171
e HEALTH CARE
173
2 Review of Consummated Hospital Mergers
174
f MERGERS
175
1 Chicago Bridge and Iron
176
C Section 5 of the FTC Act as a Consumer Protection Law
178
b FAILURE TO DISCLOSE MATERIAL FACTS
180
c ISSUES RELATED TO NEW TECHNOLOGIES
183
2 Identity Theft
184
3 Internet Fraud
185
D Federal Trade Commission Remedial Power
186
2 Civil Penalties
187
b CIVIL PENALTY PROCEEDINGS UNDER SECTION 5m
188
E Federal Trade Commission Enforcement Procedures
190
3 Enforcement of District Court Orders
191
G Other Federal Trade Commission Activities
192
b AMICUS CURIAE BRIEFS
193
c INDUSTRY GUIDES
194
2 The Proper Balance of Competition and Patent Law and Policy
195
3 FTC Report on State Action
196
5 Deception in WeightLoss Advertising
197
3 Consumer Credit Enforcement
198
b TRUTH IN LENDING ACT
199
c FAIR CREDIT REPORTING ACT
200
f COLLEGE SCHOLARSHIP FRAUD PREVENTION ACT
201
4 Labeling Regulations
202
6 PayPerCall Services
204
H Hearings and Workshops
205
DEPARTMENT OF JUSTICE ADMINISTRATION AND ENFORCEMENT
207
C Investigations
208
2 Posttrial
219
2 Applying the Sentencing Guidelines
220
c TRENDS IN CRIMINAL ANTITRUST ENFORCEMENT
222
F Nonprosecutorial Activities
224
3 Comment and Opinion Letters
225
4 Participation in Private Suits
226
5 Participation in Other Forums
227
STATE ENFORCEMENT
229
b PARENS PATRIAE ACTIONS
230
2 State Antitrust Laws
231
a DEVELOPMENT OF STATE ANTITRUST LAWS
234
b INDIRECT PURCHASERS
235
c CRIMINAL PENALTIES AND CIVIL DAMAGES
238
D Coordinated Enforcement
239
1 Vertical Restraints
241
PRIVATE ANTITRUST SUITS
243
1 Injured in His Business or Property Defined
244
b BUSINESS OR PROPERTY DEFINED
245
3 Considerations of Remoteness
249
a THE PASSONINDIRECT PURCHASER DOCTRINE
250
b OTHER CASES DEALING WITH REMOTENESS CONCERNS
253
C Standing Requirements of Section 16 of the Clayton Act
254
D Proof of Injury and Damages
255
2 Proof of Damages
257
b CALCULATON OF DAMAGES
258
E Injunctive Relief
259
3 Permanent Injunctions
261
b TOLLING THE STATUTE OF LIMITATIONS
263
2 Antitrust Class Actions
267
2 Commonality
268
4 Adequacy of Representation
269
b Superiority
270
d APPEALING THE CLASS CERTIFICATION DECISION
271
e DISMISSAL AND COMPROMISE OF CLASS ACTIONS
272
2 Settlement OptOut Approval
273
3 Approval of Attorneys Fees
274
f NOTICE AND COSTS IN CLASS ACTIONS
275
3 Selected Discovery Problems
276
1 The CrimeFraud Exception
277
c SANCTIONS FOR FAILURE TO MAKE DISCOVERY
278
e ELECTRONIC DISCOVERY
279
5 Admissibility of Expert Testimony
280
I Attorneys Fees
281
J Miscellaneous Topics
282
2 Rule 11
283
ANTITRUST ISSUES INVOLVING INTELLECTUAL PROPERTY
285
2 Judicial and Agency Approaches to the Intersection between Antitrust and Intellectual Property Laws
286
B Federal Enforcement Activities
287
C Patent and Copyright Antitrust Issues
293
b BAD FAITH ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
296
2 Licensing Intellectual Property as an Antitrust Violation
302
b ROYALTIES
304
c TYING ARRANGEMENTS
305
2 Tying as a Misuse
306
d AGREEMENT NOT TO CONTEST VALIDITY
307
3 Nonuse and Refusal to License Patents or Copyrights
310
4 Settlement of Infringement Actions and Interference Proceedings
311
D Patent and Copyright Misuse
319
E Trademarks and Antitrust
326
F Trade Secrets and Antitrust
327
G Procedural Aspects of the AntitrustIntellectual Property Interface
329
2 Procedure
330
3 Counterclaims
335
ANTITRUST AND INTERNATIONAL COMMERCE
337
C Discovery and the Conduct of Litigation in Foreign Commerce Cases
343
2 Discovery within the United States in Actions outside the United States
344
2 Bilateral and Multilateral Cooperation
345
GENERAL EXEMPTIONS AND IMMUNITIES
349
a THE CLEAR ARTICULATION REQUIREMENT
350
2 Actions Taken by Subordinate Government Entities
352
C Solicitation of Government Action
353
c EFFORTS TO INFLUENCE ADJUDICATORY PROCESSES
355
d EFFORTS TO INFLUENCE PRIVATE ORGANIZATIONS
356
2 Qualifications to Noerr Immunity
357
D Relationship between Antitrust and Government Regulation
358
2 The Filed Rate Doctrine
360
REGULATED INDUSTRIES
363
B Communications
366
b Iowa Utilities Board and the Limits of the Federal Communications Commissions Local Competition Authority
370
2 Provision of InRegion Long Distance
371
2 Cable Television
373
b MERGER ACTIVITY
374
C Energy
375
b TRANSPORTATION CAPACITY RIGHTS
377
c REFUSALS TO INTERCONNECT
381
d PRICE DISCRIMINATION
383
2 Electric Power
385
D Financial Institutions and Markets
387
b ELECTRONIC COMMERCE
391
c MERGERS AND ACQUISITIONS
392
d DOCTRINE OF IMPLIED IMMUNITY
394
E HealthCare
399
b EXCLUSIVE CONTRACTS
400
3 Health Care Provider Networks Joint Ventures and Other Health Care Entities
401
b EXCLUSIONARY CONDUCT BY PROVIDER NETWORKS JOINT VENTURES AND OTHER HEALTH CARE ENTITIES
409
2 Exclusive and Selective Contracting
410
4 Other Pricing Issues in Health Care
412
b ASSOCIATION ACTIVITY
413
5 Hospital Mergers
416
6 Pharmaceuticals and Agreements to Impede Market Entry
420
7 The NoerrPennington and State Action Doctrines
431
F Insurance
433
G Sports
434
H Transportation
435
b MERGERS AND ACQUISITIONS
439
c ENTRY AND EXIT
440
2 Air Transportation
442
b MERGERS ACQUISITIONS AND JOINT VENTURES
443
3 International
446
c PRICE FIXING AND RELATED CONDUCT
447
d MONOPOLIZATION
449
e COMPUTER RESERVATION SYSTEMS
450
TABLE OF CASES
453
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