September 13, 2019

Annual Antitrust Update for Business Lawyers

The criminal antitrust laws draw a clear line against anticompetitive horizontal restraints— i.e., cartel activity that involves price-fixing, bid rigging, or the allocation of customers or markets among competing firms. The standards governing the review of horizontal mergers of competing firms are the subject of detailed guidance and precedents created by reviewing agencies. In contrast, the boundaries of the antitrust constraints on vertical relationships and vertical restrictions imposed by entities at different levels of the supply chain are less clear. In some instances, antitrust laws may appear to operate in ways that appear arbitrary and unpredictable to business people. Indeed, as buying and selling systems and technologies grow more complex, the line between lawful and unlawful conduct may be difficult for experienced antitrust practitioners and even Supreme Court justices to discern. Further complicating matters are divergences between federal and state law, and between U.S. and non-U.S. law, in their treatment of vertical relationships and supplier-imposed restrictions on sales and distribution by resellers.