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US Antitrust: Elhauge 2018

This document discusses US antitrust law regarding horizontal price-fixing agreements between competing firms. It notes that horizontal agreements between unrelated firms are considered per se illegal, while those between related firms may qualify for a rule of reason analysis if plausible procompetitive justifications exist. It provides a brief overview of the statutory framework under the Sherman Act Section 1, which prohibits conspiratorial conduct that restrains trade, and Section 2, which prohibits monopolization or attempted monopolization.

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Sarah EunJu Lee
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95 views3 pages

US Antitrust: Elhauge 2018

This document discusses US antitrust law regarding horizontal price-fixing agreements between competing firms. It notes that horizontal agreements between unrelated firms are considered per se illegal, while those between related firms may qualify for a rule of reason analysis if plausible procompetitive justifications exist. It provides a brief overview of the statutory framework under the Sherman Act Section 1, which prohibits conspiratorial conduct that restrains trade, and Section 2, which prohibits monopolization or attempted monopolization.

Uploaded by

Sarah EunJu Lee
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd

US Antitrust

Elhauge 2018

1
Horizontal Price-Fixing
 Summary
Horizontal
Agreement

Related firms Unrelated firms

Plausible p/c
No p/c justif Per se illegal
justif

Abbreviated "quick (Professional self-


RoR look" RoR ->
regulation exception IF
condemned
agreement aimed at
informational rather than
p-related mkt defects)
Some defenses Structured version of RoR for
categorically patents + patent settlements.
excluded Actavis.

Full RoR

 Statutory Framework
o Sherman Act §1 (conspiratorial conduct)
 Every agreement in restraint of trade or commerce among several States
or with a foreign nation is illegal.
 Classic understanding: Can’t be taken literally, or every
contract/partnership would be illegal. Early courts interpreted this as
precluding “every unreasonable restraint of trade.”
o Sherman Act §2 (manner of competition)
 Every person who shall monopolize, or attempt to monopolize, or combine
or conspire with any other person or persons, to monopolize any part of
the trade or commerce among the several States, or with foreign nations,
shall be deemed guilty of a felony…
 Agreement to combine into corp or cartel that exercises monopoly power
violates both §1 and §2.
 Typically applies in cases where unsuccessful attempt to form a cartel; if
actually formed, doesn’t add much to the power of §1 (i.e., all monopoly
agreements restrain trade).

2

o

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