Saturday, March 3, 2007
Three Tenors Decision: Its Not Over Until the George Mason University Foundation Professor of Law Sings
ABSTRACT: Professor Wright mischaracterizes both the legal basis and the factual context of the FTC's Three Tenors opinion, recently affirmed by Judge Ginsburg's opinion for a unanimous panel of United States Court of Appeals for the District of Columbia Circuit. Neither opinion's legal analysis relies on the timing of the moratorium agreement. Under either opinion, the agreement to eliminate advertising and price competition would have been proscribed even had it occurred when the joint venture was formed. Moreover, the factual underpinnings of the case differ from Professor Wright's assertions. In particular, the facts demonstrate that the joint venture did not attempt to promote the combination of various three tenors products. The only coordination with the first two albums was a restriction on their discounting and advertising. There was none of the production, distribution, and promotion among the three albums normally associated with an integrated effort.
Update of March 4, 2007
Josh Wright correctly points out that I should have included the larger context of Muris' comment as this topic has a long history in the scholarly literature. Josh's article appears here. This in turn was a comment about articles by Muris and Goldberg here and here.