Private Enforcement of Antitrust Law in the United States

Private Enforcement of Antitrust Law in the United States

A Handbook

Edited by Albert A. Foer and Randy M. Stutz

Private Enforcement of Antitrust Law in the United States is a comprehensive Handbook, providing a detailed, step-by-step examination of the private enforcement process, as illuminated by many of the country’s leading practitioners, experts, and scholars.

Chapter 1: Defining Antitrust Violations in the United States

Bonny E. Sweeney

Subjects: law - academic, competition and antitrust law, law -professional, competition and antitrust law


Bonny E. Sweeney1 § 1.01 Introduction § 1.02 Restraints of trade: Agreements that restrict competition 1.02.1 “Contract, combination, or conspiracy” 1.02.2 Affecting interstate or foreign commerce 1.02.3 Unreasonably restrains competition 1.02.4 Rule of reason vs. per se analysis 1.02.5 Horizontal restraints 1.02.5(a) Cartels 1.02.5(b) Joint ventures 1.02.5(c) Concerted refusals to deal 1.02.5(d) Mergers and acquisitions 1.02.6 Vertical agreements 1.02.6(a) Hub-and-spoke price-fixing agreements 1.02.6(b) Resale price maintenance 1.02.6(c) Non-price vertical agreements 1.02.6(d) Tying arrangements § 1.03 Single firm conduct 1.03.1 Elements of a § 2 monopolization claim 1.03.1(a) Monopoly power in a relevant market 1.03.1(b) Acquired, enhanced, or maintained through exclusionary conduct 1.03.2 Examples of potentially exclusionary conduct 1.03.3 Elements of a § 2 attempted monopolization claim 1.03.4 Price discrimination § 1.04 State law § 1.05 Exempt industries § 1.06 Conclusion § 1.01 Introduction Private lawsuits have played a critical role in the enforcement of U.S. antitrust laws ever since the Sherman Act was enacted in 1890. The Supreme Court and federal and state enforcement authorities have repeatedly recognized the role Congress envisioned for the private plaintiff when it provided private parties a treble-damage remedy. As the Supreme Court put it, “the purpose of giving private parties treble-damage and injunctive remedies 1 Bonny E. Sweeney is a partner at Robbins Geller Rudman & Dowd LLP in San Diego, California, where she specializes in antitrust class action litigation. 14 M2937 - FOER 9780857939593 PRINT.indd 14 31/07/2012 10:45 Defining antitrust violations in the United States 15 was not merely to provide private...