U.S. Antitrust Law and Enforcement provides readers with a unique and accessible introduction to United States Antitrust law. This book aims to deliver a one-stop introduction to the entire field, allowing law firm and in-house practitioners who do not specialize in antitrust, foreign attorneys, and newly-minted lawyers starting a career in antitrust practice to quickly gain an understanding of the wide variety of issues and policies affected by U.S. antitrust laws. U.S. Antitrust Law and Enforcement helps attorneys develop the ability to spot and analyze antitrust law issues by providing an approachable overview of the statutes and regulations that make up the law, the leading Supreme Court decisions that create the framework for analysis found in lower court cases, the elements that must be proved to make out a claim under the various antitrust laws, and the guidelines and policy statements that describe antitrust enforcement at the federal agency level.
Intro CONTENTS ACKNOWLEDGMENTS ABOUT THE AUTHOR FOREWORD CHAPTER 1: Overview and History of U.S. Antitrust Enforcement 1.01 Overview 1.02 A Brief History of U.S. Antitrust Enforcement [A] Introduction [B] The Early Years: 1890-1955 [C] Antitrust Enforcement at its Height: 1955-1980 [D] Antitrust Enforcement Wanes in the Reagan-Bush (1) Era [E] Antitrust Enforcement Under the Clinton Administration [F] Antitrust Enforcement Since 2000 CHAPTER 2: Federal Antitrust Statutes 2.01 Introduction 2.02 The Sherman Act 2.03 The Clayton Act [A] Section 3: Tying Arrangements [B] Sections 4 and 4A: Damage Actions, Treble Damages, and Attorney's Fees [C] Section 4B: Statute of Limitations [D] Section 4C: Parens Patriae Actions [E] Section 5: Prima Facie Effect for Final Judgments [F] Section 5: Consent Decree Procedures (The Tunney Act) [G] Section 6: Labor Exemption [H] Section 7: Mergers and Acquisitions [I] Section 8: Interlocking Directorates [J] Sections 12 and 13: Venue, Service of Process, and Witness Subpoenas [K] Section 14: Imputed Liability [L] Sections 15 and 16: Injunctive Relief 2.04 The Hart-Scott-Rodino Act 2.05 The Robinson-Patman Act 2.06 The Federal Trade Commission Act 2.07 The Antitrust Civil Process Act 2.08 The Foreign Trade Antitrust Improvements Act of 1982 2.09 The International Antitrust Enforcement Assistance Act of 1994 2.10 Acts Governing Bank Mergers [A] The Bank Merger Act of 1960 [B] The Bank Merger Act of 1966 [C] The Bank Holding Company Act of 1956 2.11 Acts Providing Antitrust Immunity [A] The Webb-Pomerene Act [B] The Export Trading Company Act of 1982 [C] The McCarran-Ferguson Act (Insurance) [D] The Defense Production Act of 1950. [E] The Clayton Act and Norris-LaGuardia Act (Labor) [F] The Capper-Volstead Act (Agriculture) [G] The Charitable Gift Annuity Antitrust Relief Act of 1995 [H] The Curt Flood Act of 1998 [I] The Newspaper Preservation Act [J] The Local Government Antitrust Act of 1984 2.12 The Wilson Tariff Act 2.13 Miscellaneous Federal Statutory Provisions [A] Use of Declarations in Lieu of Affidavits: 28 U.S.C. 1746 [B] Use Immunity: 18 U.S.C. 6001-6005 [C] Statute of Limitations for Criminal Antitrust Violations: 18 U.S.C. 3282 [D] Expediting Act: 15 U.S.C. 29 CHAPTER 3: Agreements in Restraint of Trade-Sherman Act, Section 1 3.01 Introduction 3.02 The Agreement Element [A] Horizontal Agreements [B] Vertical Agreements 3.03 The Separate Parties Element 3.04 The Unreasonable Restraint of Trade Element [A] Per Se Unreasonable Agreements [B] Agreements That Violate the Rule of Reason 3.05 The Interstate Commerce Element 3.06 The Injury Element: Injury, Antitrust Injury, Standing, and Damages [A] Injury, Antitrust Injury, and Standing [B] Proof and Measure of Damages 3.07 The Criminal Intent Element 3.08 Defenses and Immunities [A] The Statute of Limitations and Tolling [B] Issues and Defenses Relating to Jurisdiction and Venue [C] The State Action (or Parker v. Brown) Defense [D] The Noerr-Pennington or Political Action Defense [E] Unclean Hands or In Pari Delicto [F] Implied Immunities 3.09 Treatment of Joint Ventures Under Section 1 [A] Joint Ventures as Mergers [B] Rule-of-Reason Analysis [C] Collateral Restraints [D] Exclusion from the Joint Venture and the Essential Facilities Doctrine [E] Federal Guidelines CHAPTER 4: Monopolization and Attempted Monopolization- Sherman Act, Section 2 4.01 Introduction. 4.02 The Elements of a Monopolization Claim [A] Monopoly Power in a Relevant Market [B] Willfulness 4.03 Elements of Attempted Monopolization [A] Predatory or Anticompetitive Conduct [B] Specific Intent to Monopolize [C] Dangerous Probability of Success 4.04 Elements of Conspiracy to Monopolize 4.05 Remedies [A] Government Actions [B] Private Actions 4.06 Patents and Antitrust [A] The Patent Misuse Doctrine [B] The Walker Process Doctrine [C] The Sham Litigation and Noerr-Pennington Doctrines [D] FTC Intellectual Property Guidelines CHAPTER 5: Mergers, Acquisitions, and Joint Ventures- Clayton Act, Section 7 5.01 Introduction 5.02 The Merger Guidelines [A] The Guidelines: Horizontal Mergers [B] The Guidelines: Non-Horizontal Mergers 5.03 The Joint Venture Guidelines 5.04 Merger Analysis in the Case Law [A] Defining the Product Market [B] Defining the Geographic Market 5.05 Vertical Mergers 5.06 Conglomerate Mergers Potential Competition Entrenchment [A] Perceived Potential Competition [B] Actual Potential Competition [C] Entrenchment 5.07 Interlocking Directorates CHAPTER 6: Premerger Notification-The Hart-Scott-Rodino Act 6.01 Introduction 6.02 The HSR Act and the Premerger Notification Rules-Overview [A] The HSR Act-Overview [B] The HSR Rules-Overview 6.03 Determining Reportability [A] Does the Transaction Involve an Acquisition? [B] Do the Parties Meet the Size-of-the-Parties Test? [C] Does the Transaction Meet the Size-of-the- Transaction Test? [D] Exemptions [E] Who Must File 6.04 Preparing and Filing The Premerger Notification and Report [A] Information to be Furnished in the Premerger Notification Form [B] Signed Agreement a Prerequisite for Filing [C] Timing and Completion of the Filing. Filing Fees 6.05 Penalties for Failure to File 6.06 Inadvertent Failure to File 6.07 The Thirty-Day Waiting Period 6.08 Early Termination 6.09 Preliminary Investigation 6.10 Premerger Coordination and Gun-Jumping 6.11 Second Requests 6.12 Government Challenges Consent Decrees Injunctions [A] Negotiated Settlements Consent Decrees [B] Injunction Actions 6.13 Some Strategic Considerations CHAPTER 7: Price Discrimination-The Robinson-Patman Act 7.01 Introduction 7.02 The Act's Terms 7.03 The Primary, Secondary, and Third Lines 7.04 Promotional and Advertising Allowances 7.05 FTC Guides 7.06 Defenses [A] The Cost Justification Defense [B] The Changing Conditions Defense [C] The Meeting Competition Defense CHAPTER 8: Antitrust Enforcement 8.01 Introduction 8.02 The Department of Justice [A] Criminal Enforcement [B] Civil Enforcement [C] Merger Enforcement [D] Business Review Letters 8.03 The Federal Trade Commission [A] FTC Remedial Powers [B] FTC Enforcement Procedures [C] Merger Enforcement [D] Advisory Opinions and Policy Statements 8.04 State Attorneys General 8.05 Private Litigants [A] Service of Process and Venue [B] Prima Facie Effect of Prior Government Judgments [C] Injunctive Relief [D] Summary Judgment [E] Class Actions [F] The Judicial Panel on Multidistrict Litigation [G] Arbitrability [H] Joint and Several Liability and No Right of Contribution [I] Taxability and Deductibility of Payments in Response to Antitrust Suits [J] Insurance Coverage [K] Attorney's Fee Awards [L] Pre-Judgment Interest and Punitive Damages APPENDIX: The United States Federal and Judicial Systems A.01 The U.S. Constitution and the Three-Branch Federal Government [A] The Legislative Branch. [B] The Executive Branch [C] The Judicial Branch [D] The Bill of Rights A.02 The Federal Courts and the Common Law Process [A] The Federal Court System [B] Legal Decision-Making and the Common Law Process A.03 How a Case Proceeds In the Federal Courts [A] District Court Proceedings [B] Proceedings in the Circuit Courts of Appeal [C] Proceedings in the U.S. Supreme Court A.04 The U.S. Legal Citation System [A] Citations to the Constitution and Federal Statutes [B] Citations to Court and Evidentiary Rules [C] Citations to Federal Agency Rules and Regulations [D] Citations to Federal Judicial Opinions [E] Citations to Federal Trade Commission Opinions [F] Common Explanatory Terms and Abbreviations GLOSSARY OF ANTITRUST AND RELATED TERMS A B C D E F G H I J K L M N O P Q R S T U V W TABLE OF CASES INDEX A B C D E F G H I J L M N O P R S T U V W.
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Print version: Broder, Douglas U.S. Antitrust Law and Enforcement