Thursday, June 23, 2005
The Fourth Circuit ruled on June 14 that Gosselin World Wide Moving did not have immunity from the antitrust laws under the Shipping Act. The Act's antitrust immunity provisions, enacted in 1916 to allow US shipping companies on a level playing field with non-US companies, were read narrowly and did not apply to the criminal bid rigging conduct. Gosselin was accused of a price conspiracy in transporting the belongings of military personnel overseas for the Department of Defense.
Wednesday, June 22, 2005
I received two offprints recently, each providing a unique perspective on antitrust law.
Marina Lao, Professor of Law at Seton Hall Law School, makes the case for a deeper consideration of intent evidence in monopolization cases. She concluides in "Reclaiming A Role for Intent Evidence in Monopolization Analysis," 54 American University Law Review 151-213 (2004), that when a purely economic effects analysis produces inconclusive results, "we should turn to intent evidence for further guidance and possibly a proxy for effect." This approach, by the way, is analogous to the treatment of intent evidence in trademark infringement cases, where intent evidence can be used, for example, to support a finding of consumer confusion or diversion.
Timothy Greaney, Professor of Law and Director, Center for Health Law Studies at Saint Louis University Law School, analyzes "Chicago's Procrustean Bed" at 71 Antitrust Law Journal 857-920 (2004) (SSRN LINK). Professor Greaney's article looks at the application of antitrust law in the health care sector makes a self-described "modest claim" that "the tendency in practice to overlook market imperfections, together with many received assumptions and doctrines, often yields a distorted picture economic relations in health care markets." The claim is an important one for those who seek to rethink the classic Chicago School paradigm in antitrust as applied to merger analysis in the health care industry. Professor Greaney, like Professor Lao, takes the Chicago School to task for downplaying the role of intent evidence in antitrust.
Thanks for sending me these offprints and keep them coming!
The ABA brief in support of the grant of cert explains why this case is important: it offers a chance for the Court to clarify the standard for tying arrangements and the treatment of IP rights under antitrust. As posted yesterday, the Court granted cert in the case Monday.
Tuesday, June 21, 2005
In the first ever extradition case involving antitrust, the UK court, earlier this month, approved the extradition of Ian Norris, Chief Executive of Morgan Crucible Co., to the US for alleged participation in a price fixing conspiracy. the extradition reflects a lowered standard under a treaty between the US and UK enacted two years ago. The US Senate has yet to ratify the extradition treaty.
The Court granted the certiori petition in Illinois Tool Works v. Independent Ink yesterday. The case was decided in January 2005 by the Federal Circuit, which held that patent ownership creates a presumption of market power in the analysis of tying arrangements. Not only does the 2005-2006 term promise to be an interesting one for antitrust law (with review of the tying issue in Illinois Tool and of the Robinson-Patman issue in Volvo), but the decision in Illinois Tool can potentially address the problem of the relationship between antitrust law and intellectual property that has dogged many appellate courts in the last 15 years. The Court will most likely take the opportunity to clarify the law of tying since Jefferson Parish and Kodak.