Let’s pretend that you are starting the new year with an exciting opportunity: You were just named general counsel of a multi-national corporation with several market-leading products.
You received lots of congratulations, high-fives, and kudos during holiday parties and family get-togethers, but you can’t help but start to think about the arduous task ahead.
Little Johnny finally has a chance for some decent-priced piano lessons, thanks to the diligence of your Federal Trade Commission.
On Monday, December 16, 2013 the FTC slammed the full weight of its antitrust authority against the Music Teachers National Association (MTNA) and their vicious cartel to make little Susie pay more for her violin lessons.
The Association entered into a consent decree with the FTC, addressing the following provisions in their code of ethics: “The teacher shall respect the integrity of other teachers’ studios and shall not actively recruit students from another studio.”
The Internet didn’t fall down after my first post, so I thought I’d try another.
In the US, certain conduct is so obviously anticompetitive that antitrust law labels it per se illegal. These restraints lack redeeming pro-competitive value in almost all instances, so the law allows plaintiffs an important short-cut to pleading and proving such a claim.
The short-cut is that a plaintiff asserting a per-se-antitrust claim need not demonstrate anticompetitive harm. The law presumes such harm. This is huge because this element is one of the most difficult and expensive to prove.
Proving anticompetitive harm is often tough. Plaintiffs usually start by defining the relevant product and geographic markets. This is obvious is some cases; difficult and disputed in others.
Within that defined market, the plaintiff will then usually have to show market or monopoly power, then actual competitive harm in that market that exceeds any competitive benefits from the challenged restraint. It doesn’t always go like this, but that is the typical journey.
Proving all of this almost always requires expert economic testimony, which is—again—almost always disputed by defendants’ economic expert.
So this anticompetitive harm element can become quite burdensome and expensive. That is why fitting a case into a per-se-antitrust package is so valuable for a plaintiff, and risky for a defendant.
Price-fixing agreements usually come to mind as the prototypical per se antitrust violation (keep in mind that antitrust views agreements to limit volume as effectively the same thing). Other examples are market-allocation agreements and certain boycotts.
Let’s talk about market-allocation agreements—as price-fixing is a bit too obvious—so we can see how dangerously easy it is for this per-se-antitrust violation to develop.
Market allocation is an antitrust problem because competitors are agreeing not to compete. The most simple market-allocation agreement is geographic—“you take customers West of the Mississippi, and we will take the ones to the East.”
But sometimes it develops more subtly.
Welcome. My name is Jarod Bona and this is my new antitrust blog—The Antitrust Attorney Blog. My antitrust and competition practice is global, but I am fortunate to live in Sunny San Diego with my wonderful wife and son. If you’ve never been to San Diego, I highly recommend it.
I am starting this blog to participate in the “market-place of ideas,” primarily on antitrust and competition issues. But I will probably dabble in other areas too, as—like most antitrust lawyers—I do more than just antitrust. Indeed, after my clerkship, I started my career as an appellate attorney in Washington, DC, and I continue to litigate non-antitrust cases in both appellate and trial courts.
I graduated from Harvard Law School in 2001, then clerked in Minneapolis for Judge James B. Loken of the United States Court of Appeals for the Eighth Circuit. I then joined the Appellate and Constitutional Law Group of Gibson Dunn in Washington, DC before moving to California and eventually DLA Piper. I also spent several years in DLA Piper’s Minneapolis office. Update: I now work for my own law firm–Bona Law PC.
The Antitrust Attorney Blog