Revitalizing Antitrust in Its Second Century: Essays on Legal, Economic, and Political Policy

By Harry First; Eleanor M. Fox et al. | Go to book overview

cartels, and more troublesome restraints than meritorious ventures, the eye and the mind must run the full length of the chart before settling into a structured path of inquiry.


NOTES
1.
National Soc'y of Professional Engs. v. United States, 435 U.S. 679 ( 1978).
2.
FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 ( 1990).
3.
United States v. Topco Assocs., Inc., 405 U.S. 596 ( 1972).
4.
Arizona v. Maricopa Medical Soc'y, 457 U.S. 332 ( 1982).
5.
FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 ( 1990).
6.
See Citizen Pub. Co. v. United States, 394 U.S. 131 ( 1969).
7.
See United States v. Topco Assocs., Inc., 405 U.S. 596 ( 1972).
8.
See United States v. Minnesota Mining & Mfg. Co., 92 F. Supp. 947 (D. Mass. 1950).
9.
441 U.S. 1 ( 1979).
10.
468 U.S. 85 ( 1984).
11.
472 U.S. 284 ( 1985).
12.
Even then, some law and theory would indicate that defendants may be able to justify the exclusion on grounds that competitors' ex post right to be included would significantly undermine the collaborators' ex ante incentives to undertake the joint venture; thus, the complainants' remedy, if any, should be joint venturing with others. See U.S. Department of Justice Antitrust Enforcement Guidelines for International Operations, § 3.42 ( Nov. 10, 1988). Compare the philosophy expressed in Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210 (D.C. Cir. 1986), cert. denied, 479 U.S. 1033 ( 1987); In re E. I. du Pont de Nemours & Co. (titanium dioxide), 96 F.T.C. 650 ( 1980).
13.
In re General Motors Corp., 103 F.T.C. 374 ( 1984).
14.
15 U.S.C. § 6a; 15 U.S.C. § 45.
15.
15 U.S.C. §§ 4001-4003, 4011-4021.
16.
See 15 U.S.C. §§ 4301-4305.
17.
FTC v. Superior Court Trial Lawyers Ass'n, 110 S. Ct. 768 ( 1990); Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332 ( 1982).
18.
FTC v. Indiana Fed'n of Dentists, 476 U.S. 447 ( 1986).
19.
See United States v. Columbia Pictures Indus., Inc., 507 F. Supp. 412 (S.D.N.Y. 1980), aff'd without opinion, 2d Cir. 1981.
20.
Yamaha Motor Co. v. FTC, 657 F.2d 971 (8th Cir. 1981), cert. denied, 456 U.S. 915 ( 1982).
21.
As a theoretical possibility, the parties could offer a justification by making a clear and convincing showing that U.S. industrywide cooperation is necessary to achieve important available economies or to realize breakthrough innovation, that foreign competition is a powerful competitive force and is likely to remain so, and that the parties have adopted appropriate restrictions on the extent and duration of their venture, sufficient to maintain incentives for individual innovation and to prevent the venture from becoming a forum for spillover collaboration.
22.
FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 ( 1990).
23.
United States v. Topco Assocs., Inc., 405 U.S. 596 ( 1972). Compare Arizona v. Maricopa Medical Soc'y, 457 U.S. 332 ( 1982). wherein the doctors' maximum price-fixing agreement was allegedly ancillary to a plan to provide lower-cost insurance, but the Court declined to analyze the price agreement as ancillary because the doctors' businesses were

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