Antitrust refers to the regulation of the concentration of economic power, particularly with regard to trusts and monopolies. Antitrust laws exist as both federal statutes and state statutes. The three key federal statutes in Antitrust Law are the Sherman Act Section 1, the Sherman Act Section 2, and the Clayton Act. Section 1 delineates and prohibits specific means of anticompetitive conduct, and Section 2 deals with end results that are anti-competitive in nature. Sections 1 and 2 supplements each other in an effort to outlaw all types of anticompetitive conduct. The Clayton Act regulates the mergers or acquisition of the companies together with the guidelines published by the Department of Justice and the Federal Trade Commission. As for the states, many have adopted antitrust statutes that parallel the Sherman Antitrust Act to prevent anticompetitive behavior within individual states. Penalties for violating the Sherman Act can be both criminal and civil (most enforcement actions are civil). Criminal prosecutions are limited to intentional and clear violations (ex. price-fixing and rig bids). Criminal penalties for corporations can reach up to $100 million and $1 million for individuals with up to 10 years in prison. Additionally, the maximum fine may be increased to twice the amount the conspirators gained from the illegal act or twice the amount of money lost by the victims of the crime if either of those amounts is over $100 million.
Why Antitrust Laws Matter?
The antitrust laws are supposed to promote and protect competition, or, if you will, competitive processes in distinct “lines of commerce” or “relevant markets.” This alone is their proper purpose. They are not intended to punish big companies merely on account of their size or because of their commercial success. Most importantly, the antitrust laws have never been anti-market or anti-business in their underlying conception or in their implementation. On the contrary, the antitrust laws are intended to promote market economics and healthy competition in every market, while checking the abuses that sometimes arise in different markets. The idea behind these laws is that in every market there should be robust competition: If in each market there are many sellers busily competing against one another to sell a particular kind of product or service to paying customers, no seller will be able to take unfair advantage of the buyers, but rather each seller will be obliged to offer its goods or service on attractive terms, and each will be responsive and efficient in its dealings with buyers, who otherwise will simply turn to another, better seller. In other words, vigorous competition in any given market keeps the sellers honest, forcing them to strive continually both to improve their goods and services and to offer them on favorable terms. Customers benefit from this competition. Poorly run companies are run out of business, as they deserve to be. The better run companies and the most honest ones too, tend to prosper. Society as a whole benefits. This is nothing other than marketplace economics working properly and rewarding each of us for our efforts, our talent, and our perseverance. The antitrust laws exist to help marketplace economics to work better.
The antitrust laws serve to promote and protect market economics, doing so on the theory that society flourishes the most when it is founded on vigorous competition. Antitrust laws are meant to ensure that these incentives and the resulting excellence and low prices flourish in every market (save those that by their very nature admit the presence of only one seller). The antitrust laws exist not to punish or dismantle successful, prosperous companies, even the most dominant global monopolies of the era. These laws instead are meant to redress or temper the fundamental flaw that seems inherent in unbridled competition. That is, the antitrust laws serve to “correct” the inherent contradiction of market economies. In many key markets, one firm or a clutch of major firms often come to dominate the entire market. Once this happens, competition in this market ceases altogether or at best becomes a pale shadow of its former self. Antitrust laws provide protection and relief from this scenario. If competition obliges sellers to act on their best behavior, then the antitrust laws oblige dominant competitors to do the same rather than abuse their dominance in order to take advantage of their captive customers. The only other alternatives are as follows:
• Do nothing and allow various anti-competitive monopolies and cartels to form and suffocate commerce, innovation and responsive service in the markets that they control; or
• impose stultifying government regulation.
More specifically, the antitrust laws serve to check and redress the improper acquisition and abuse of market dominance. In particular, these laws forbid two categories of conduct:
• monopolization — i.e., the use of “anti-competitive measures” to acquire, preserve or enlarge monopoly power in a given market; and
• unlawful restraints of trade — i.e., conduct jointly undertaken by two or more independent actors that unfairly suppress “competition on the merits” in a given market, leading to higher prices, worse service, lack of innovation or loss of choice.
What Antitrust Laws Try to Accomplish
Antitrust laws, properly understood, are intended to grapple with this market contradiction. In particular they forbid any improper monopoly or any attempt to obtain a monopoly by improper means that is, a monopoly obtained, preserved or attempted by a firm that on purpose has destroyed or tried to destroy its competitors, using anti-competitive tactics whose sole or true purpose has been to undermine rival businesses. The antitrust laws also forbid dominant firms to act in collusion in order to impose unfair commercial practices that tend to subvert “competition on the merits” in any market that they dominate or aim to dominate by means of the improper practice. These laws also outlaw specific kinds of recognized commercial fraud that by their very nature are calculated to destroy competition in the market in which they are employed (the most notable offenders are bid-rigging, price-fixing, and horizontal market allocation).
The Charter Principles of Antitrust Law
Broadly speaking, the antitrust laws set forth a series of general propositions that serve as the “charter principles” of marketplace economics in the United States.
• Monopolization: A monopoly is not unlawful, but obtaining or maintaining monopoly power by anticompetitive means constitutes a serious antitrust offense. Specifically, a defendant firm can be held liable for unlawful monopolization in violation of Section 2 of the Sherman Act if the following matters are proved against it: First, that the defendant firm holds monopoly power in a properly defined relevant market which can be proven by direct evidence of the defendant’s ability to impose supracompetitive prices or by a showing that the defendant makes a dominant percentage of overall sales, and that its market share is protected by strong barriers to entry and expansion. by new rivals as well as strong barriers to expansion by existing rivals; and second, that the defendant firm has acquired or maintained its monopoly power by means of anticompetitive practices which broadly speaking are business practices that the defendant employs to undermine its rivals and obstruct their ability to compete against it rather than to improve its own offerings. If the government proves these points, it will prevail. If the plaintiff is a private litigant, it must also prove its own antitrust injury which means harm that it has suffered in proximate consequence of an anticompetitive aspect of the challenged anticompetitive conduct.
• Attempted Monopolization/Conspiracies to Monopolize: It is also improper for a firm to attempt to acquire a monopoly by means of anticompetitive business practices. Specifically, a defendant firm can be held liable for attempted monopolization in violation of Section 2 of the Sherman Act if the following points are proved against it. First, that the defendant firm has employed anticompetitive practices with the specific intent of acquiring a monopoly position in a properly defined relevant market; and second, that there exists a “dangerous probability” that the defendant will succeed in the effort unless there is an antitrust intervention. A private litigant must also prove its own antitrust injury. The last of the monopolization offenses is called a “conspiracy to monopolize.” This offense is said to occur when two or more independent, unaffiliated economic actors conspire to confer monopoly power on a single firm by means of anticompetitive practices. Each conspirator must take at least one act in furtherance of the common plan to obtain monopoly power by means of anticompetitive practices. As in all antitrust cases, a private litigant must prove its antitrust injury in order to establish a claim for this offense.
• Restraints of Trade: It is also illegal under the antitrust laws for two or more independent, unaffiliated firms to act in concert to employ commercial practices that harm competitive processes in a properly defined relevant market. There are three categories of unlawful trade restraints:
1. Restraints that are unlawful per se;
2. Restraints that are condemned under the so-called “Rule of Reason; and
3. Restraints that are condemned under the “quick-look” doctrine.
• Per Se Offenses: It is always improper for two or more direct competitors to set or manipulate the prices that they charge their customers. The offense is called horizontal price-fixing. Nor can competitors pre-arrange bids at competitive auctions or in response to bid-solicitations (bid-rigging); nor can they allocate among themselves parts of a market by customer, territory, specified contracts or product line (horizontal market allocation); nor can they coordinate horizontal group boycotts (a coordinated refusal to deal with a supplier, customer or competitor in order to deprive it of supplies or facilities that it requires to continue competing in a given line of commerce); nor in certain cases can they provide a commercially indispensable product or service only on condition that the buyers also purchase another product or service (unlawful tying). These practices, however ingeniously characterized, are usually treated as per se antitrust offenses. Per se restraints are usually imposed by direct competitors that collectively wield market power. The classic per se violation is price-fixing imposed by large firms in highly concentrated markets. An emerging doctrine is that trade restraints should be deemed unlawful when they are “naked” but not when they are “ancillary.”
• The Rule of Reason: Business dealings between companies can be condemned as trade restraints under the rule of reason only if the following matters are proven:
The plaintiff must show that the challenged practices have caused harm to competition in a properly defined relevant market;
if the plaintiff makes this showing, the defendants must then show that the challenged practices serve a legitimate, important business purpose; and
If the defendants make this showing, the plaintiff must show that the claimed business purposes are a mere pretext or that they could be reasonably accomplished by less restrictive practices. If the plaintiff makes this last showing, the judge or jury must then decide whether the challenged practices on balance cause more harm to competition than they fulfill legitimate commercial aims. “Harm to competition” usually means practices that suppress or restrict competitive rivalries that would otherwise yield lower prices, better products, more products or a wider variety of products in the relevant market.
• The Quick-Look Doctrine: Business dealings can be condemned as trade restraints under the “quick-look doctrine” when they are novel or little known practices that appear to be “obviously” inimical to competition on the merits, no matter how the relevant market is defined.
• Other Offenses: There are other, more technical wrongs that likewise constitute antitrust offenses: For example, it is an antitrust offense under Section 3 of the Clayton Act for two or more firms to use exclusive-dealing arrangements, if the arrangements will probably foreclose a substantial part of overall sales in a relevant market for an extended duration and thereby prevent rival sellers from making enough sales to attain sufficient economies of scale. It is sometimes unlawful under the Robinson-Patman Act for a firm to charge different prices for the same goods when selling them to different commercial customers, but only if the practice causes harm to competition in the seller’s own market, its customers’ markets, or in tertiary markets. It is likewise unlawful for a commercial buyer to induce a seller to commit these offenses. These offenses are called unlawful price discrimination.
Federal Antitrust Laws, And What Do They Prohibit?
There are three major federal antitrust laws: The Sherman Antitrust Act, the Clayton Act and the Federal Trade Commission Act.
• The Sherman Antitrust Act has stood since 1890 as the principal law expressing our national commitment to a free market economy in which competition free from private and governmental restraints leads to the best results to the consumers. Congress felt so strongly about this commitment that there was only one dissenting vote to the Act. The Sherman Act outlaws all contracts, combinations, and conspiracies that unreasonably restrain interstate trade. This includes agreements among competitors to fix prices, rig bids and allocate customers. The Sherman Act also makes it a crime to monopolize any part of interstate commerce. An unlawful monopoly exists when only one firm provides a product or service, and it has become the only supplier not because its product or service is superior to others, but by suppressing competition with anticompetitive conduct. The Act is not violated simply when one firm’s vigorous competition and lower prices take sales from its less efficient competitors; rather, that is competition working properly. Sherman Act violations are punished as criminal felonies. The Department of Justice alone is empowered to bring criminal prosecutions under the Sherman Act. Individual violators can be fined up to $350,000 and sentenced to up to 3 years in federal prison for each offense; corporations can be fined up to $10 million for each offense. Under some circumstances, the fines can go even higher.
• The Clayton Act is a civil statute (it carries no criminal penalties) that was passed in 1914 and significantly amended in 1950. The Clayton Act prohibits mergers or acquisitions that are likely to lessen competition. Under the Act, the government challenges those mergers that a careful economic analysis shows are likely to increase prices to consumers. All persons considering a merger or acquisition above a certain size must notify both the Antitrust Division and the Federal Trade Commission. The Act also prohibits certain other business practices that under certain circumstances may harm competition.
• The Federal Trade Commission Act prohibits unfair methods of competition in interstate commerce, but carries no criminal penalties. It also created the Federal Trade Commission to police violations of the Act. The Department of Justice also often uses other laws to fight illegal activities, including laws that prohibit false statements to federal agencies, perjury, obstruction of justice, conspiracies to defraud the United States and mail and wire fraud. Each of these crimes carries its own fines and imprisonment terms which may be added to the fines and imprisonment terms for antitrust law violations.
What Does an Antitrust Lawyer Do?
An antitrust lawyer is employed by individuals, businesses, and the government to make sure that companies follow antitrust laws. Some activities include:
• Counseling your business for antitrust laws
• Representing you in a claim or lawsuit
• Conducting internal corporate investigations
How Can an Antitrust Lawyer Help Me?
You may want to prevent future legal issues by hiring an antitrust lawyer advise your business transactions. A lawyer can give antitrust counseling, such as in a distribution agreement, a joint venture or merger. An antitrust lawyer can also represent you if your business is accused of violating antitrust laws. An antitrust lawyer can represent you in a lawsuit or help you form a class action, such as if:
• You’re a business owner unable to survive because one company has monopolized your industry
• You’re a consumer that’s paying more because one company is raising prices unfairly
Antitrust violations are difficult to prove, you need to show that one company is affecting the entire market by trying to run out all the other business. This makes it important to find a lawyer who’s an expert in antitrust laws and knows how to prove a violation. Your lawyer should be able to advise you whether or not the case is worth your time or money since such cases are difficult to win.
How Much Does an Antitrust Lawyer Cost?
Typically, antitrust attorneys charge by the hour. Some may charge on a contingency basis, which means that you’re billed a percentage only if you win your case. If you don’t win, your lawyer won’t receive any payment. Since a lawyer runs the risk of not being paid, it’s likely you will only be charged a contingency if you have a very strong case. Negotiate a rate up front so that you know what to expect.
What Should I Expect When Working with an Antitrust Lawyer?
An antitrust Lawyer should be honest about your chance winning your case and how long the process will take. If you do end up going to court, it’s a long and expensive proceeding. Even though your Lawyer will be able to guide you, you have to commit a lot to the case. Expert testimonies are necessary and will add additional costs. Antitrust cases are often class action suits, so the burden is shared among a group. Although it’s possible for you to win a large settlement, a very likely result is a lot of time and effort with no result. An antitrust Lawyer is the most qualified to advise on your best plan of action, so it’s best to consult with an attorney if you think you have a valid case.
Utah Antitrust Lawyer
When you need a Utah antitrust attorney, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506