Antitrust and Consumer Protection
Competition: Spring 2014, Vol. 23, No. 1
Content
- Chair's Column
- Do First Amendment Principles Limit the Antitrust Agencies' Ability To Prohibit Enforcement of Standards-essential Patents?
- Does the First Amendment Immunize Google's Search Engine Search Results From Government Antitrust Scrutiny?
- Editor's Note
- First Amendment Protection For Search Engine Search Results
- Judges Speak Out: the Make-or-break Moment of Certifying a Class With Judges Marsha Berzon, Virginia Phillips, John Wiley, and Curtis Karnow
- Landmark Civil Price-fixing Verdicts of 2013: Lessons From the Vitamin C and Urethanes Trials With Trial Counsel and Observers William a. Isaacson, Daniel S. Mason, Joseph Goldberg, and Michael Tubach
- Lcd Redux: Follow-on Class Action and Direct Purchaser Litigation From 2012'S Doj Criminal Prosecutions Views from Trial Experts Bruce Simon, Howard Varinsky, and Robert Freitas
- Masthead
- Noerr-pennington: Safeguarding the First Amendment Right To Petition the Government
- Regulation of Companies' Data Security Practices Under the Ftc Act and California Unfair Competition Law
- The Irrelevance of the First Amendment To the Modern Regulation of the Internet
- The Misapplication of Matsushita's Heightened Summary Judgment Standard
- The Supreme Court In Borough of Duryea V. Guarnieri Signals a Retreat From Pre's Broad Deference To the Right To Petition
- Trial By Sample: a Post-game, Locker Room Chat Exploring the McAdams V. Monier Trial: a Roundtable With Trial Counsel Jeffrey Cereghino and William Stern
- Update On California State Antitrust and Unfair Competition Law and Federal and State Procedural Law
- The Market-participant Exception To State-action Immunity From Antitrust Liability
THE MARKET-PARTICIPANT EXCEPTION TO STATE-ACTION IMMUNITY FROM ANTITRUST LIABILITY
Jarod M. Bona and Luke A. Wake1
I. INTRODUCTION
"The heart of our national economy has long been faith in the value of competition,"2 and as the United States Supreme Court put it, those "fundamental national values of free enterprise and economic competition" are embodied in federal antitrust laws.3 Antitrust enforcers and "private attorneys’ general"4 work within this system to support competition by challenging anticompetitive conduct.
But a significant category of potentially-anticompetitive conduct often escapes antitrust scrutiny: state and local commercial activity. Governmental entities can, and do, enter the marketplace as competitors, and may have even stronger incentives than profit-maximizing firms to harm competition.5 Indeed, state and local entities have built-in advantages that may allow them to successfully monopolize, or otherwise injure competition. For example, a local entity could utilize a statutory monopoly on certain utilities to tie those monopolistic services to other products or services from a competitive market. Or, a governmental entity could use the power to tax to raise sufficient revenue to offer a product or service below cost for sufficient time to exclude other competitors from a market.