· Scope of course: federal antitrust law
o There are state antitrust statutes. They often incorporate federal law but have important deviations. Two-thirds of state deviations are pro-plaintiff. And plaintiffs get to choose where they file.
o All federal antitrust law resides in 15 U.S.C. AT statutes are refreshingly short. Most federal AT law is located in cases.
· Start out by looking at statutes (1087)
o This course if mainly about §§ 1, 2 of the Sherman Act. We start with § 2, single firm monopolization.
o Sherman Act, passed in 1890, mostly unchanged, different dollar amounts. 80% of U.S. practice is under Sherman or Clayton Acts. There is international antitrust practice.
· Overview of Statutes
o Sherman Act (1890)
o Sherman § 1. First sentence. In second, antitrust violation is a felony. No separation of civil from criminal liability. Statute does double duty. Construed more broadly in civil cases.
o “combination,” “conspiracy,” and “restraint of trade” were well known phrases in common law. But case law under Sherman Act deviated sharply from common law history. By 1920, common law precedents were virtually useless, and remain so today.
o §1 is invoked any time you have two or more legal entities engaging in activity that restrain trade. No unilateral action. There must be an agreement.
· Sherman § 2
o Refers to unilateral conduct. Monopolize or attempt to monopolize. There were no good common law analogues for monopolization offense; Congress invented it.
o There were Slaughterhouse Cases and English cases, but they pertained monopolies granted by the government.
o Monopolization offense was directed at large private corporatio
o Monopolize, on a basic level, is creating a monopoly. But there are a lot of ways to drive others out of business. Some of the things that create monopolies are very socially beneficial, e.g. innovation.
§ This hasn’t been resolved. There remain extraordinary differences of opinion as to which exclusionary practices constitute “monopolizing.”
· Common to both §§ 1 & 2
o “commerce among the several states”
§ paraphrase of Commerce Clause. Reach of these statutes is equal to Congress’s full power under Commerce Clause. Interstate commerce must be plead, exists in almost all cases.
o “or with foreign nations”
§ If British and French firms fixed prices on items that were sold in the U.S., that conduct would be reachable under U.S. AT law, even if all acts were performed abroad.
o criminal liability, “deemed guilty of a felony”
§ There is no longer any criminal liability for violation of § 2 (monopolization) unless it involves a concurrent violation of § 1. Criminal liability under § 1 usually involves naked price fixing.
· Clayton Act
o People were displeased with how the Sherman Act had played out in the courts.
In 1912, Woodrow Wilson beat Teddy Roosevelt. All candidates had antitrust platforms. Democratic (Wilson) platform was by far the most aggressive. Wilson got Clayton Act passed (1914) and FTC Act (1914). Antitrust Act is enforced by U.S. Dept. of Justice and FTC. FTC is an administrative agency, internal admin proceedings, ALJs.