Tuesday, January 20, 2009
Posted by D. Daniel Sokol
Patricia Schultheiss and William E. Cohen of the FTC discuss Cheap Exclusion: Role and Limits.
ABSTRACT: This paper examines the legal and policy issues related to using section 2 to prosecute such cases. Section II elaborates on the nature of “cheap exclusion,” briefly describes the principal lines of cases that could be characterized as cheap exclusion, and identifies the policy reasons for, and concerns with, applying antitrust theories in such cases. Section III highlights key principles and limits for determining when cheap exclusion is an appropriate candidate for antitrust review, and Section IV discusses how these considerations have interacted in practice. Section V addresses the framework for analyzing cheap exclusion allegations. Section VI summarizes our conclusions.