Antitrust and Consumer Protection
Competition: Fall 2015, Vol 24, No. 2
Content
- A Tale of Two Statutes: Cipro, Edwards, and the Rule of Reason
- Antitrust Treatment of State Licensing Boards In the Wake of North Carolina State Board of Dental Examiners V.F.T.C.
- Breaking a Monopoly: Vigilante Justice or the Sort of Innovative Approach We Celebrate?
- Chair's Column
- Editor's Note
- Health Care Merger Analysis In the Era of Payment Reform
- Masthead
- Mobile Apps: Redefining the Virtual California Economy and the Laws That Govern It
- Off-label Use of the Cartwright Act: Will Cipro Require State Courts To Assess Federal Patent Validity In Pay-for-delay Cases?
- Pleading An Antitrust Conspiracy In a Post-twombly World
- Promoting Antitrust Compliance the Antitrust Division's Subtle Shift Regarding Corporate Compliance: a Step Toward Incentivizing More Robust Antitrust Compliance Efforts
- Putting Cipro Meat On Actavis Bones: a Case Study In Filling In the Legal Gaps
- Table of Contents
- The Antitrust and Unfair Competition Law Section
- The Magna Carta and the Sherman Act
- The Northern District of California Opens Its Doors To the World's Civil Antitrust Disputes
- What You See Isn't What You Get: How the Colgate Doctrine May Apply To the Disposable Contact Lens Antitrust Litigation
- Capitalizing On Judicial Antitrust Experience
CAPITALIZING ON JUDICIAL ANTITRUST EXPERIENCE
By Peter K. Huston1
I. INTRODUCTION
Federal antitrust cases are rarely simple. The statutes themselves are short enough and written in plain language, but they are broad. Courts have had to layer on all sorts of complex doctrines and constructs over the last 100-plus years as they have applied the statutes to real-world disputes. The list of thorny concepts is long: "Relevant product and geographic markets," "unilateral and coordinated effects," "conscious parallelism," "Illinois Brick/pass on," "dual distribution," "quick look," "recoupment," "foreclosure," "small-but-significant-non-transitory-increases-in-price (SSNIP)," and on and on. In addition, the influence of economics on antitrust law has steadily increased and econometric tools have become more sophisticated. And to make things even more complicated, both antitrust law and economics are moving targets. Cases decided in the past can reflect outmoded thinking, even if they haven’t been specifically overruled, creating a minefield for the uninitiated.
Of course, it becomes a little easier to mentally wrestle difficult antitrust concepts to the ground the more one is exposed to them. But many judges have little, if any, experience with antitrust cases. Others get a relatively steady diet. While hundreds of antitrust cases are filed in the federal court system every year, they are not filed evenly across all 94 districts. For a variety of reasons a few districts get far more than their fair share. In fact, statistics from the last few years show that more civil antitrust cases have been filed in the top five districts—the Northern District of California, the Southern District of New York, the Eastern District of Michigan, the Eastern District of Pennsylvania, and the District of New Jersey—than all of the other 89 districts combined.2