Antitrust II

What is the antitrust injury requirement?

1. "Antitrust injury is the type that antitrust laws were designed to prevent and which flows from the defendant's actions." 2. Frequent cause for dismissal is a lack of antitrust injury. 3. Regardless of whether party brings action for damages or injunction, plaintiff must plead or prove an antitrust injury.

Is antitrust settlement frequent or infrequent? If you intend to settle with FTC/DOJ, why would you do so before discovery starts?

1. Antitrust settlement is frequent, 75-90% of antitrust cases are settled. 2. Settle before discovery because: (a) Settlement must give public notice (60 days) and competitive impact statement (court reviews agreement to determine if it is adequate to protect the public). (b) Need to ensure that settlement does not contain admission of wrongdoing as such an admission can be used by private plaintiffs in subsequent suit. (c) Settlement IS NOT prima facie evidence of antitrust liability IF decree is entered BEFORE ANY TESTIMONY is taken.

What are the DOJ and FTC clearance procedures and why does Meyers suggest clients not do this?

1. Both DOJ (Business Review Letter) and FTC (Advisory Opinion) can give advance clearance to entities contemplating an impending (not hypothetical) action that may violate antitrust laws. Meyers suggest clients rarely do this because: 1. DOJ/FTC can change their minds (will notify that they have revoked clearance and company has 90 days to correct). 2. FTC not bound by DOJ clearance and vice versa. 3. Private parties not bound by clearances (relevant to defense but not automatic win for defendant). 4. States and courts are not bound by clearance. OK Antitrust law does not have any formal clearance procedure.

What proof does a seller need of a competitor's lower price to meet the Good Faith Meeting Competition Defense?

1. Casual reliance on uncorroborated reports is not enough (Staley). 2. Per US v. US Gypsum (1978), evidence of good faith meeting competition may include: (1) Other reports of a similar discount [i.e., not one buyer]; (2) buyer indicating they will terminate relationship if discount is not matched; (3) buyer providing pricing sheet of seller 1 to seller 2; (4) past experience with buyer. 3. CANNOT call competitors to confirm their price (it would be price-fixing).

Robinson-Patman Act Purpose & History

1. Designed (according to legislative history) to prevent the chains from taking over by preventing wrongful price discrimination. 2. RPA is the most violated and by far least enforced antitrust act. 3. Meyer's view: RPA protects competitors not competition. Designed to protect the small buyer against the large buyer. 4. Still exists due to small business lobbying. Successfully presenting an RPA claim is not impossible but incredibly expensive and will likely produce minimal results.

What are the features of civil liability under antitrust law?

1. FTC brings actions for injunctions (or dissolution if merger has already occurred). 2. If suit for damages by DOJ, State, or private party standard is amount of damages determined by jury then trebled. 3. Attorney's fees can ONLY be awarded to plaintiff.

What is the statute of limitations for a civil antitrust violation both federally and in Oklahoma?

1. Federal statute - 4 years from the inception of conspiracy (unless concealment which is very limited). (a) Self-concealing conspiracy: Entered into a conspiracy and keep it concealed by agreement (natural and expected) - SoL is not tolled. (b) Fraudulent concealment: Different in that one of members of conspiracy threatens someone outside party to keep conspiracy concealed - SoL IS tolled. 2. OK SoL: 4 years from beginning of bad conduct or discovery thereof, whichever is later.

What two takeaways regarding vertical integration merger may be gathered from US v. Columbia Steel (1948) and US v. Dupont (1957)?

1. General Columbia Steel takeaway: The argument that exclusive relationship between parent-subsidiary is inherently violative of Section 7 is dead. 2. General DuPont takeaway: Anticompetitive effects on competition are measured at the time of suit, not the time of acquisition.

Why might a prospective private plaintiff file a complaint with an enforcement agency rather than filing suit in court?

1. If government pursues and wins, can aid the private party's civil suit tremendously. 2. Congress provided by law that an action by the government tolls the statute of limitations for private parties for one year after completion of the governmental action when it involves the same issues.

What is the commerce requirement?

1. In Section 1 & 2 of the Sherman Act there is an interstate commerce requirement (conduct must occur in interstate commerce.) Under RPA, one sale must occur across state lines. 2. Summit Health Ltd. v. Pinhas (1991) [where effective boycott of one doctor in LA was deemed to meet commerce requirement] shows that interstate commerce requirement is quite broad. It should be judged by the restraint's impact upon interstate commerce, not the restraint on the particular plaintiff.

What happened in US v. Philadelphia Bank and the subsequent enactment of the Bank Merger Act (1966)?

1. In US v. Philadelphia Bank the USSC struck down merger of the second and third largest banks in Philadelphia due to (1) tendency towards merger in the marketplace and (2) rejection of the countervailing power argument asserted by Philadelphia Bank. 2. The Bank Merger Act (1) limited the DOJ to 30 days after FDIC approval of bank merger to contest merger [essentially making FDIC primary regulators of bank merger] and (2) Specifically permitted the countervailing power argument.

What does Hallie v. City of Eau Claire (1985) have to say about the state action doctrine?

1. Just need a fair reading of statute to see if it authorizes actor (does not need to specify exactly what they may do). 2. Second prong of test does not apply to municipalities because they are extension of state sovereignty and thus do not require state supervision.

What are the exemptions to antitrust regulation?

1. Labor Exemption (Section 6 of the Clayton Act): Collective bargaining agreements permit competitors (like sports ball players) to get together and agree to what kind of contract they want with employer (even though this would usually be a horizontal conspiracy). 2. Non-Statutory Labor Exemption (created by courts): Permits employers (like NFL, NBA etc.) to collectively bargain with unions. 3. Export Associations 4. National Defense: When the nation is at war the president can immunize certain industries from application of antitrust laws. 5. McCarran-Ferguson Act: Exempts insurance providers from antitrust laws insofar as the activity in question is the business of insurance and is not otherwise regulated by state law. 6. Agricultural Co-Op Exemption: Farmers are exempt from application of antitrust laws IF what they are doing is being done collectively.

What are the requirements for agricultural co-op exemption?

1. Must be farming member of the co-op in the area; 2. Must be a non-profit co-op; 3. Agriculture organization may fix price provided that no members are non-farmers. Sec. of Agriculture certifies whether ag co-ops are exempt or not; Sec. can issue cease and desist if ag co-op does not meet requirements.

What are the major features of criminal prosecution for an antitrust violation?

1. Only DOJ can bring criminal prosecution at federal level (state can bring where state is injured party--not parens patriae). 2. Initiated by a grand jury investigation. 3. Potential punishments include: (a) If an individual - maximum of 10 year sentence (under state law 5 years) and a fine of up to $1 million. (b) If a corporation - Up to $100 million fine.

What are the the three lines of commerce that may be injured by discriminatory pricing?

1. Primary line discrimination: Where the price discrimination is intended to harm a competitor of the discriminating seller. [(1)Predatory pricing; (2) Rare, but typically the way it works is in conjunction with a section 2 Sherman Act attempt to monopolize case.] 2. Secondary Line Discrimination: Where one buyer is harmed by another buyer getting a lower price from a common seller. 3. Tertiary Line Discrimination: When one customer is harmed by price discrimination benefiting another customer.

What do FTC v. Ticor (1992) & North Carolina State Board of Dental Examiners v. FTC (2015) tell us about the active supervision requirement of the state action doctrine?

1. Ticor and progeny tell us that that active supervision does not mean complete state control, but government DOES need to do something more than just have the power to negate a decision that will automatically go into effect otherwise. 2. North Carolina Dental rule: Where the state board or agency has a majority of members that are participants in the profession or business being regulated then conduct is not immune under SAD. [OK Solution - Independent state committee reviews all actions of boards regulating industry to supervise decisions.]

What are the three types of merger regulated by Section 7 of the Clayton Act?

1. Vertical Integration Merger (VIM): Vertical integration is where a producer acquires a distributor or vice versa. Traditionally difficult to have a VIM that violates Section 7. [Lawfulness of VIM has generally been accepted until recent governmental attack on AT&T/Comcast merger. Reasons VIM is favored: (1) likelihood of efficiencies created by VIM; (2) Not competitors given that entities exist at different levels of the market; (3) Acquiring company will likely enter distribution market irrespective of whether merger is allowed.] 2. Horizontal Merger (Merger of Competitors): Highly impacted by Section 7 as merger of competitors inherently involves concentration in the marketplace. 3. Merger of Potential Competitors: Merger or acquisition of existing competitor with a potential competitor or vice versa.

What is proper venue for an antitrust claim?

1. Where the defendant is. 2. Where the defendant does business. 3. Where the defendant may be found. Fact of conspiracy does not give venue, given joint and several liability, parties should sue wherever the deepest pockets are among conspirators. Not unusual in major cases to bring suit in multiple venues.

What are sharing agreements and why do defendants frequently use them?

2. Sharing Agreement: Basically, multiple co-defendants agreeing to share costs (judgment amount by settlement or trial) on basis of market share [NOT SHARING ATTORNEYS]. (a) Joint and several liability prompts these agreements (each co-defendant is liable for the whole amount) and there is no right of indemnification (unless agreed to by K--sharing agreement). (b) Sharing agreement cannot preclude a party from settling when others do not wish to settle --any agreement which stipulates this is void against public policy as to that term.

What is a Civil Investigative Demand (CID)?

A CID is a civil device by which the federal government may carry out pre-suit investigation in an antitrust civil action. Features: 1. CID may require production of documents, answers to interrogatories, depositions of corporate officers. 2. No CID in criminal cases. 3. DOJ prohibited by law from giving documents found in CID to any other entity. 4. If party thinks they are being oppressed by CID they can contest in local federal district court.

What is a natural monopoly?

A market that is most efficiently served by one firm (i.e., utilities etc.). Criticized because competition still exists in this market just at the level of competing for the franchise agreement rather than the customer.

Why might a potential monopolist want to define the relevant market broadly? When might they wish to define it broadly?

Broadly: Generally, a potential monopolist would want to define the relevant market broadly if it would sufficiently dilute the mergers effects on concentration in the market so as to not implicate antitrust concerns. Narrowly: Alternatively, a potential monopolist may wish to define the market narrowly so that it and the acquired company are not competitors in the same relevant market and the acquisition would consequently not involve market concentration concerns generally.

What are the entities that may enforce antitrust laws for both civil and criminal violations.

Civil Violations: Federal enforcement: 1. DOJ - CID/Complaint filed in district court if necessary. 2. FTC - Administrative proceeding before hearing examiner at FTC which can be appealed to circuit court. State enforcement: 1. Parens Patriae - AG brings action on behalf of injured state citizens. 2. Interested party - state itself is injured party. Private party enforcement Criminal violation Federal enforcement: 1. DOJ (not FTC) State enforcement: 1. State can bring criminal suit if state is injured party. Private enforcement - Private parties cannot enforce criminal violations.

What are the Failing Company and Failing Division Defenses?

Defense to an otherwise unlawful merger or acquisition. Acquiring party must show: 1. Chapter XI bankruptcy reorganization is not feasible. 2. Have to make a compelling case that without sale company will indeed go under. 3. Have to show that the proposed buyer is the only buyer that could take over and is willing to take over. [At issue in Citizen Publishing Co. v. US (1969) where FCD was unavailable as company did not show it was only available purchaser. Newspaper Preservation Act (1970) permitted this merger going forward (except combination of reporting and editorial staff).] Failing division defense has same elements as failing company defense but only need to show division was going to fail instead of entire company. [Meyers GE Glow-lamp case; recognized by merger guidelines].

What is the Direct Purchaser Doctrine including reasons for it and exceptions to it?

Direct Purchaser Doctrine (Illinois Brick Co. v. Illinois (1977)): ONLY a direct purchaser may sue for an antitrust violation. 1. Illinois Brick Co. v. Illinois (a) State of Illinois bought bricks from brickmasons who bought from Illinois Brick, which had an alleged price-fixing conspiracy and the fixed prices were "passed on" to the state through the masons. (b) Held: "allowing offensive but not defensive use of pass-on would create a serious risk of multiple liability for defendants." 2. Antitrust Modernization Commission has recommended Illinois Brick be reversed and there is a case before the USSC against Google [price-fixing on applications] where Google has raised DPD defense saying app purchasers cannot sue as indirect purchasers. 3. Basic justification - Seller cannot use "pass on" theory against a buyer (i.e., that buyer passes on fixed price to customer) so the indirect purchaser should not be able to use the same against seller. If it were permitted, it would be incredibly difficult to delineate the extent to which the indirect purchase price was attributable to the original seller or an intermediary mark-up. Exceptions: 1. Pre-existing, fixed-cost, or fixed-quantity contract: If a certain grouping of sales was negotiated before a cartel came into existence and the K provided that the supplier (also the direct purchaser) would take a specified mark-up. Both the mark-up and the quantity must be specified in K. 2. Where the direct purchaser is a co-conspirator in the price-fixing conspiracy. 3. Where direct purchaser is owned or controlled by the manufacturer. 4. Where the indirect purchaser seeks an injunction.

What is parens patriae?

Doctrine that says states as "parent of citizens may bring an action on behalf of citizens to recover damages/injunctive relief for affected citizens. 1. Hart-Scott-Rodino Act: Allows states to sue for treble damages under parens patriae. 2. Can only be brough on behalf of natural persons (not companies). 3. Not typical action because there will usually just be a private class action.

What is in pari delicto?

Equally at fault. Comes up in antitrust but differently--cannot be asserted by one defendant against another. 1. Minority view: If plaintiff in action bears at least substantially equal responsibility for the violation then it can be sued. 2. Majority view: Defendant 1 cannot sue defendant 2.

What is the Morton Rule?

FTC v. Morton Salt Co. (1948) 1. Rule: In secondary-line discrimination cases (not primary) injury to competition may be inferred, there does not have to be a finding of fact that there has in fact been injury to competition [IF INJUNCTION BY GOVERNMENT.] 2. Facts: Quantity discount schedule available to every purchaser. Court held that lowest price was practically unavailable (only 5 large distributors ever received it) and thus it was unlawful.

How were mergers and acquisitions evaluated after US v. General Dynamics Corp. (1974)?

Factors Post-General Dynamics: 1. Market definition and concentration. 2. Structure of market 3. History of Market 4. Probable future of market. General Dynamics rule: Market concentration data is not the ONLY factor to determine whether a merger unlawfully lessens competition under Section 7. Specifically, in General Dynamics the merging competitors, though two of the largest in the coal mining market, had 90% of their production already under long-term contracts so the merger was permitted.

What is proper jurisdiction and amount in controversy for a federal antitrust claim?

For federal antitrust claim, there is exclusive federal jurisdiction BUT no amount in controversy requirement.

Why might a company prefer a CID to a formal complaint?

If company is sued by DOJ they have to show on financial statements which can hurt stock price. If it is a CID no requirement to disclose and may be able to settle instead of facing a lawsuit.

What is a sub-market?

In FTC v. Staples (1997) USSC upheld government contention that office supply superstores were a submarket of office supply market and merger of Staples and Office Depot should not be allowed accordingly. A sub-market generally: 1. Industry or public recognition of sub-market as a separate economic entity. 2. Products peculiar characteristics and uses. 3. Production facilities. 4. Distinct customers 5. Distinct prices 6. Sensitivity to price changes. 7. Specialized vendors. DO NOT need ALL 7 factors but need enough to come to conclusion that there is sub-market.

What is the rule of Section 7 of the Clayton Act and some of its general features (enforcement mechanism & history)?

Makes an acquisition or merger unlawful if it MAY substantially lessen competition or TEND to create a monopoly. [May and tend tell us that a potential antitrust violation by merger or acquisition can occur even though no harm has actually occurred.] Enforcement mechanisms: (1) federal government (DOJ/FTC) (2) state government; or (3) private parties. [Under Section 1 or 2 of Sherman Act 90% of actions brought by federal government; under section 7 of the Clayton Act 90% are brought by private plaintiffs] Prior to 1950 (Celler-Kefauver Act) the Clayton Act only applied to mergers, not acquisitions. Pre-1950 claims were brought under Sections 1 & 2 of the Sherman Act. Modernly, all such claims are brought under Section 7 because claims can be brought before the harm ever occurs and there is a lower evidentiary standard.

What does RPA 2(f) do?

Makes it a RPA violation for a purchaser to knowingly induce an unlawful discriminatory price. [Has been a singularly unsuccessful provision.] [Great A&P Tea Co. v. FTC (1979): Buyer's liability is derivative of seller's liability so no violation by buyer without violation by seller.]

What was the primary early focus by the DOJ in evaluating potential mergers or acquisitions under Section 7 ?

Market concentration and the tendency towards market concentration. After Brown Shoe Co. v. United States (1962) the court considered the tendency towards concentration in the marketplace an important factor in evaluating whether a potential merger or acquisition should be permitted.

What is the Noerr-Pennington Doctrine and associated rules from the case law?

Private entities are immune from liability under the antitrust laws for attempts to influence the passage or enforcement of laws, even if the laws they advocate for would have anticompetitive effects because the right to petition one's government for a redress of grievances is constitutionally guaranteed. 1. Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc. (1961): Petitioning government is not "business activity" regulated by the government so right is constitutionally protected BUT if activity is a sham and not a good faith petition it may not be protected. (See California Motor Transport v. Trucking Unlimited (1972) - USSC rejected 12(b)(6) motion by defendants where it was alleged that defendants objected to every carrier application irrespective of merit). 2. United Mine Workers v. Pennington (1965): Noerr applies to petitions to the executive branch. 3. Allied Tube & Conduit Corp. v. Indian Head, Inc. (1988): An anticompetitive restraint of trade orchestrated by a group lack official governmental authority or public accountability (private standard setting agencies) is not entitled to antitrust immunity generally afforded to petitions to the government. 4. FTC v. Superior Court Trial Lawyers Association (1990): One cannot effect the antitrust injury as the means by which one petitions the government (here lawyers boycotted in hopes of legislative change, not protected).

Why is trebling of damages for antitrust claim permitted?

Private plaintiffs are the primary enforcers of Section 7 and take enormous risk in cost of litigation in bringing a claim. Government wants to reward plaintiffs to encourage private enforcement.

RPA Defenses

RPA 2(a) (1) Cost justification defense - "nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered." [Sounds like volume discounts are fine BUT because of restrictive interpretation by courts requiring comprehensive accounting for price differential this defense is basically useless.] 2. Changing Conditions Defense: Where the conditions for the demand on a good have changed a seller may charge different prices to different buyers. [Generally obsolescence of seasonal or perishable goods.] 3. 2(B) Defense - Good Faith Meeting competition: Where seller 1 is meeting the price of seller 2 in offering different prices to different buyers. [This is the best defense in most circumstances.]

What are the prima facie elements of a Robinson-Patman Act violation claim?

RPA 2(a): 1. Commerce requirement - at least one sale made across state lines. [In OK could have claim under OK Antitrust section 204 if RPA not met.] 2. There must be a direct or indirect discrimination between different purchasers. [(1)Direct: Selling to B1 @ $1; B2 @ $2.; Indirect: B1 & B2 at same price but seller requires B2 to pick up and delivers to B1 based on volume difference. (2) Different purchasers - Must be a purchase, not a lease.] 3. Purchasers of commodities. [(1) Commodities defined by courts as tangible goods (not services)]. 4. Need at least two consummated sales. [If seller offers B2 a discriminatory price but does not sell to them, there is no RPA violation.] 5. Commodities must be of like grade and quality. [Test for like grade and quality based on the physical or chemical make-up of the good, not the branding. (Borden case - Borden selling branded condensed milk at higher price than generic identical condensed milk.)] 6. Effects clause - "Where the effect of such discrimination may be to: (a) Substantially lessen competition; (b) Tend to create a monopoly; or (c) To injure, destroy, or prevent competition with: (1) People who grant the discriminatory price; (2) Knowingly receives benefit of such discrimination; or (3) customers of either. [First two categories of effects clause not really applied by courts, primarily look at the third category.]

What is the State Action Doctrine (SAD)? What is the two-part test?

SAD - Courts say states have the right, in relation to antitrust policy, to enact and enforce a scheme of regulation even though absent that regulation the conduct would violate federal antitrust laws. Judicially created doctrine so it is strictly construed. Cities do NOT have sovereignty like states, therefore city policy does not grant state action doctrine immunity. Two- part test: 1. Conduct allowed by the state must be made or done pursuant to a clearly articulated and affirmatively expressed state policy AND 2. That policy must be actively supervised by the state. [California Retail Liquor Dealers Association v. Midcal Aluminum, Inc. (1980): Price scheduling by association was not actively supervised therefore not exempt.]

What is the standing requirement?

Standing - Need to have suffered an injury that is (generally) directly related to antitrust activity. 1. Blue Shield of Virginia v. McCready (1982) [McCready had insurance through employer (K between employer and Blue shield) and used psychologist services, which were not covered whereas psychiatrist services were] - Two factors for directness of injury: (1) Look to the physical and economic nexus between the alleged violation and the harm to the plaintiff and (2) the relationship of the injury alleged with those forms of injury antitrust laws are meant to prevent and provide a private remedy for. 2. Associated General Contractors v. California Council of Carpenters (1983): Union could not sue AGC based on theory that union members were boycotted, then union members couldn't pay dues, and unions were harmed. Too tenuous of a connection.

What is the McCarran-Ferguson Act and what are its requirements?

The MFA exempts insurance providers from antitrust laws insofar as the activity in question is the business of insurance and is not regulated by state law. Requirements: 1. Business of insurance: Does not cover everything insurance company does. Three attributes to determine if activity qualifies: (a) does the practice spread risk? (b) is the activity an integral part of the K between the insurance company and the insured? (c) Is practice limited to entities in the insurance business? 2. Regulated by state law: If state law proscribes conduct that is a distinct issue. Essentially permits insurance companies to get together and charge a set price in a given state (lawful price-fixing).

Automatic 5 Points on Exam Phrase

The antitrust laws protect competition not competitors.

In evaluating merger of potential competitors what market is relevant under US v. Continental Can Co. (1964)?

The end-use market. Continental Can (#2 can producer) tried to acquire #3 glass container producer. USSC struck down acquisition as end-use market would potentially have less competition.

What are the Merger Guidelines and how are they applied?

The merger guidelines are published by the FTC and DOJ to provide guidance to the business community on permissible/impermissible mergers and acquisitions. First published in the 1980s and the most recent version is from 2010. 1. First try to define relevant geographic and product market. ----Use SSNIP ("Small but significant non-transitory increase in price") test: Tells you who is in the market by hypothetical 5% price increase to see what competitors would enter market and competitors consumers would turn to with price increase. 2. Measure concentration in the relevant market. (a) Concentration Ratio of Top 4 (CR4): Look at concentration of top 4 firms in the relevant market. [Old method, though still used by state attorney generals, that presumed that if a merger had significant anticompetitve effects it would involve one of the top 4 firms in the market.] (b) Herfindahl Hirschman Index (HHI): Sum of the squares method. After doing SSNIP (tells you relevant competitors), square the market share of relevant competitors prior to M&A to determine market concentration and relative shares. Then do HHI post-merger and measure difference. [1. Unconcentrated market: less than 1500 (change less than 100 no effect); 2. Moderately concentrated market: 1500-2500 (more than 100 change - significant competitive concerns); 3. Highly concentrated market: Above 2500 (Increase 100-200 = significant competitive concerns; increase over 200 = presumption of illegality). Additional Factors: 3. Pricing of Differentiated Products: Whether the newly formed entity may now increase sales of one of its products by increasing the price of another. 4. Whether the M&A harms a business where bargaining and auctioning are used because it eliminates a competitive bidder. 5. Whether the merged firm will find it profitable unilaterally to suppress output and elevate the market price in a market for homogeneous products. 6. Whether a merger is likely to diminish innovation competition by encouraging the merged firm to curtail its innovative efforts that would have prevailed in the absence of merger. 7. Whether the merger has the effect of enabling or encouraging post-merger coordinated interaction among firms in the relevant market that harms customers. 8. Whether powerful buyers can constrain the ability of the merging parties to raise prices. 9. Barriers to entry: (a) Timeliness: In order to deter the competitive effects of concern, entry must be rapid enough to make unprofitable overall the actions causing those effects and thus leading to entry, even though those actions would be profitable until entry takes effect. (b) Likelihood: Entry is likely if it would be profitable, accounting for the assets, capabilities, and capital needed and the risks involved, including the need for the entrant to incur costs that would not be recovered if the entrant later exits. (c) Sufficiency: Even where timely and likely, entry may not be sufficient to deter or counteract the competitive effects of concern. May be insufficient if products offered by entrant are not competitive, reputational barriers, entrants are too small. 10. Efficiencies: Only concrete (not vague) efficiencies likely to be accomplished with the proposed merger and unlikely to be accomplished in the absence of either the proposed merger or another means having comparable anticompetitive effects.

What is predatory pricing?

The pricing of goods or services at such a low level that other suppliers cannot compete and are forced to leave the market.

What takeaway from FTC v. Proctor & Gamble Co. (1967) in regards to merger of potential competitors?

The substitution of the powerful acquiring firm for the smaller, but already dominant firm, may substantially reduce the competitive structure of the industry by raising entry barriers and dissuading smaller firms from aggressively competing.

What are the two big takeaways from Payne v. Chrysler Motors Corp. (1981)

Two big takeaways: 1. Need to show ACTUAL damages to competition if you are a PRIVATE plaintiff seeking damages. 2. Measure of damages is LOST PROFITS using the YARDSTICK METHOD [Comparing what business looked like when harmed by pricing structure with what it would have looked like if it had received a fair deal.] Facts: Chrysler had "sales incentive program" charging every purchaser the same amount for cars but giving a bonus when dealers hit a target set by Chrysler. Plaintiff claimed that Chrysler set target a lot higher than competitors.

Does Oklahoma have a CID analogue?

Yes. OK Antitrust Reform Act Section 210: 1. AG's office has pre-suit investigative powers modeled on federal system. 2. ONLY applies in antitrust, not a general investigatory power.