Case study of antitrust law and enforcement

Antitrust

I don't have the proper bibliographical info for the book chapters. I noted the number from the two PDFs of the book where appropriate. You might wish to add the proper info and change the notes to fit.

MARKET CONDITIONS in the U.S.: It would seem highly unlikely that this information alone would be sufficient to bring an antitrust action. Prudent and even gutsy or aggressive business people might well seek such information to generate a competitive advantage with little intention toward manipulating the market (Fried Frank, 2002). Even if it does lean toward some expected restraint of trade (Sherman Act), what is occurring at this point clearly passes the reasonableness test. Talking of such issues is not collusive price fixing and suggests no conscious parallelism, for example, which might indicate that their association is for inappropriate purposes (pg. 468).

DETAILS of INDIVIDUAL SALES: In this instance the burden of predatory intent would still be high, since it would be necessary to establish that the company's actions materially hurt the market as a whole and that they were involved in some degree of influential manipulative pricing. In Matsushita, the highest court found little evidence of this with substantially more of a record for review. Were there "category captains" or some such known entity that manipulated the distribution of automobiles to distributors, the case might be closer to allowing for some level of concern, but what is provided would likely still come up short in deference to good business practices.

AVERAGE COSTS: Average costs and related general information is not sufficient to bring the conversation to a predatory status. Said Elzinga (nd) of this issue in regards to Matsushita,

There was some evidence that a Japanese trade association (the Electronic Industries Association of Japan) gathered and disseminated average prices of televisions sold for export, but no record of exchanges of current price information, much less agreement on prices or quantities of export. Absent evidence of this character, the plaintiffs' predation case becomes one requiring proof of predatory pricing by individual defendants.

INTERNATIONAL LAW: The importance of the decision in Matsushita rested on the validity of economic predictions and judgments bearing on cross-national actions. The Supreme Court had difficulty with this issue, acknowledging that it could not make a good judgment about whether something was competitively advantageous or not in one country (Japan) vis-a-vis America's market interests. Since that time, however, multi-lateral trade and even security agreements have altered this game. A 2007 Federal Trade Commission posting addresses this issue well,

It is clear that antitrust is becoming increasingly important to American firms that are more and more involved in international transactions. These firms must be carefully attuned not only to the antitrust laws of the United States but also to the competition policies and antitrust enforcement regimes of the other nations in which they operate. A surprising number of nations are paying heightened attention to the role of antitrust enforcement in keeping their markets free and efficient (FTC, 2007).

Another key element centers on legal and popular assumptions about what "cartels" are and how they work for or against competitive advantage. The public is widely aware of their involvement in oil or petroleum markets, but focuses little on whether the predator cheater acts within or outside of that collective's predictive expectations (Elzinga, nd: 229). The simple passage of a Chinese anti-monopoly law in 2008, which provides for limitations of abusive actions on state-run enterprises in favor of consumers, is at the least a gigantic move forward as well in international antitrust enforcement (pg. 674).

BIBLICAL MODEL: Bern's sees that "God's Law" has a number of places of relevance, were it to exist within antitrust considerations. He makes the case that there is at least implied expectation that for a person to fulfill the "stewardship-dominion mandate" he (or she) would be producing the best product at the lowest, most fair price (Bern, 1995: 154). Horizontal conspiratorial arrangements challenge this expectation even if they do not raise the issue to the point where the "evildoers" deserve governmental criminal condemnation. How one would extract appropriate punishment, however, is less clear. Prison is not allowable under the Israel Example, but corporate punishment of someone might be. Vertical predatory actions are different since one has no obligation to ensure that another does his (or her) stewardship duty (Bern, nd: 157).