Antitrust, UCL and Privacy

Competition: Fall 2015, Vol 24, No. 2

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

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