Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

      Section 1 of the Sherman Act proscribes any “contract, combination... or conspiracy” that restrains domestic or foreign commerce (15 U.S.C. § 1). Since this provision read literally would prohibit any commercial contract or action that has the effect of restraining trade, the Supreme Court has interpreted this Section as prohibiting only restraints of trade that unreasonably restrict competi …

"Per se" rule, "rule of reason" and "quick look" analysis

      Section 1 of the Sherman Act proscribes any “contract, combination... or conspiracy” that restrains domestic or foreign commerce (15 U.S.C. § 1). Since this provision read literally would prohibit any commercial contract or action that has the effect of restraining trade, the Supreme Court has interpreted this Section as prohibiting only restraints of trade that unreasonably restrict competition (Standard Oil Co. of N.J. v. United States, 221 U.S. 1 (1911)). Courts determining whether a practice unreasonably restrains trade apply either the per se rule, the “rule of reason,” or the intermediate “quick look” standard.

  Practices with obvious anticompetitive effects are presumed unreasonable and declared illegal without factual inquiry. In this regard, the Supreme Court has held that, “There are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable.” (Northern Pacific Railway Co. v. U.S., 356 U.S.1 (1958)). These per se offenses include horizontal price-fixing, market division, and group boycotts. In such cases, only one element of proof is required from the plaintiff: the existence of the practice. Neither is he/she required to prove it produces an unreasonable restraint nor is the defendant allowed to claim its reasonableness.

  Other restraints are examined under the “rule of reason” analysis. Delineating the relevant market is generally the first step in this analysis, although the Supreme Court has held that direct proof of harm to competition can obviate the need for such an inquiry (Federal Trade Comm'n v. Indiana Federation of Dentists, 476 U.S. 447 (1986)). Next, the plaintiff must establish that the defendant has enough market power to actually threaten competition. Market power can be defined as the ability to control prices, restrict output, or exclude competition. Courts then consider the particular nature of the restraint and its apparent effect including the impact on existing and prospective competitors, the structure of the industry, barriers to entry, efficiency gains or losses, and the strength of the defendant relative to competitors.

  A final indicator of reasonableness is whether the restraint was intended to implement a legitimate business objective; good intentions are not conclusive where a restraint actually has unreasonable anticompetitive effects. The court then balances the harm against any countervailing pro-competitive justification, such as increased efficiencies in the operation of the market or the provision of goods and services, in order to determine whether the restraint unreasonably harms competition.

  The “quick look” analysis applies where the challenged conduct does not involve a per se restraint but the likelihood of anticompetitive harm nevertheless appears at first glance to be high. In such cases, the burden shifts to the defendant to justify the effect on competition of its conduct. If the defendant makes a plausible showing that the effect on competition is not unreasonably harmful, then the burden shifts back to the plaintiff to prove its case under the full rule of reason analysis.

        A key requirement in finding a Section 1 violation is that the challenged conduct must involve concerted action rather than the unilateral behavior of separate actors. Written agreements, contemporaneous oral statements, or circumstantial evidence may all be used to infer the existence of concerted conduct, (see, e.g., American Tobacco Co. v. United States, 328 U.S. 781 (1946)), finding a conspiracy where there existed parallel conduct that would not otherwise be expected). On the other hand, coincidental behavior that can be explained on legitimate business grounds does not establish a conspiracy (Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287 (11th Cir. 2003)), parallel though individual price increases in an oligopoly market). Joint action involving a corporation and its unincorporated divisions or controlled subsidiaries also does not constitute concerted action (see Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984)).

Global Competition Law

1428. "Per se" rule, "rule of reason" and "quick look" analysis

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Les notions juridiques connexes

1428. "Per se" rule, "rule of reason" and "quick look" analysis

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise