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Antitrust Law Developments: A How-to Guide

Olga Fleysh

Antitrust Law Developments: A How-to Guide
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As a new antitrust law associate, you will be inundated with resources the first time you research an antitrust law question. Antitrust Law Developments (ALD) is just one resource among a heap of antitrust materials at your fingertips, including handbooks, treatises, competition news sources, and government websites. Each resource has a principal use; however, I find that the ALD—the ABA’s flagship antitrust publication—is the most prudent starting place for new associates facing an unfamiliar topic. 

The ALD comprises two volumes, and it is available in hard copy and as an e-book (also available on Lexis Advance). The two volumes cover 14 chapters, including Sections 1 and 2 of the Sherman Act, the Clayton Act, the FTC Act, the Hart-Scott Rodino Act, the Robinson-Patman Act, and state antitrust laws. In addition to civil litigation, the ALD covers state litigation, civil and criminal government enforcement, the intersection of antitrust and intellectual property, international commerce, and exemptions and immunities. The ALD is updated annually with the most recent legal developments by antitrust professionals in the field.

Tackling the ALD

I approach the ALD with a cone-like method—starting with a broad look at relevant topics, looking at the cases cited by the ALD for the applicable rule of law, and then shepardizing cases in the appropriate jurisdiction. As an example, let’s consider a research request to find the applicable rule of law on above-cost price discounting in the Eighth Circuit: Can a manufacturer violate antitrust laws by charging a price above its costs but too low for competitors to match? The e-book has drop-down lists of the subparts of the table of contents and allows you to highlight, annotate, and print portions of the e-book. I used a hard copy of the ALD that we had at my office.

From my antitrust class in law school, I know that when the alleged anticompetitive conduct involves just a single manufacturer, I should look to chapter two, Monopolization and Related Offenses, rather than a chapter that discusses agreements between firms or conspiracies. The introduction to this chapter explains monopoly power generally and helps me acquire a firm grasp of the essential elements of monopolization.

Researching Specific Assignments

With the basics in hand, I can turn to the specific research assignment. A quick scan of the table of contents tells me that exclusionary conduct related to pricing can be found in subpart C.5, Predatory and Exploitative Pricing. The introduction lays out pricing basics and the important difference between price cutting that promotes competition and benefits consumers versus anticompetitive predatory pricing. Subpart a on price-cost relationships further explains the rule of law in the Supreme Court and how each circuit addresses it. Now I know that certain types of below-cost price discounting can be illegal under Section 2 of the Sherman Act.

This principle allows me to narrow the search further. Now I can move on to researching above-cost price discounting. Going back to the table of contents, I look for other sections that relate to discounts. Under subpart 2, Vertical Restrictions Limiting Competitor Access to Markets or Supplies, there is a subpart d about loyalty discounts. This section tells me that there is nothing illegal about above-cost price discounting. Notably, one important excerpt related to the Eighth Circuit: “Other courts have refused to apply a predatory pricing analysis to complaints about discounting under § 2. See Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1062 (8th Cir. 2000).” Using the e-book or Advance version, I can easily click on the linked case to review it in Lexis or type it into their preferred case research site. From there, I can shepardize the case to find other Eighth Circuit cases and complete the research project.

Exploring Other Resources

The ALD is just a start. Now that I have the pertinent Eighth Circuit cases in hand, I can move on to other resources. The Areeda and Hovenkamp Treatise is particularly helpful on policy arguments and can help supplement your understanding of the broad area of law. Law360 Competition News or Global Competition Review can provide press on a particular subject or recent cases. Government agency websites can give insight into whether the government has spoken on a specific issue. These resources are all useful, but they are significantly more beneficial once I have a basic understanding of current antitrust developments from the ALD.