Antitrust & Competition Policy Blog

Swope Antitrust Prize

Law Student Wins Jones Day's 1st Annual Swope Antitrust Prize

WASHINGTON, March 28 -- A Berkeley law student won the first annual William
E. Swope Antitrust Prize for a paper arguing that social norms can violate
the Sherman Act.

The $10,000 writing prize, which commemorates the former Jones Day partner
and his pioneering fact-intensive approach to antitrust analysis, was
awarded at ceremonies in the firm's Washington office to Dean Harvey, a
third-year student at the Boalt Hall School of Law of the University of
California at Berkeley. Receiving $1,500 honorable mention prizes were Casey
W. Halladay, who was awarded an LL.M. by Harvard Law School last year, and
Joshua D. Wright, an assistant professor at George Mason University Law
School. The winners will also attend the Spring Meeting of the American Bar
Association's Antitrust Section as guests of Jones Day.

"At a time when antitrust enforcement clung to rigid rules, tests, and
theories, Bill Swope focused on facts and how they explained how specific
markets worked in the real world," said Phil Proger, the head of Jones Day's
global antitrust practice. "For raising some interesting new approaches to
antitrust analysis, we are pleased to recognize Dean Harvey's work in this
tradition."

Only law students and recent graduates are eligible for the annual
competition. The deadline for submissions for next year's prize is December
31. Complete rules are available at jonesday.com/antitrust_competition_law/.

Jones Day is an international law firm with 30 locations in centers of
business and finance throughout the world. With more than 2,200 lawyers,
including more than 400 in Europe, and 175 in Asia, it ranks among the
world's largest law firms. Jones Day acts as principal outside counsel to,
or provides significant legal representation for, more than half of the
Fortune Global 500 companies. The Antitrust & Competition Law Practice,
consisting of about 130 counselors and litigators in 16 offices in the U.S.,
Europe, and Asia, is consistently recognized in professional publications
and rankings as one of the leading antitrust/competition practices in the
world.

Information about next year's competition: Download SecondAnnualSwopeWritingCompetition.pdf

Safe haven for joint ventures?

On Feb 28, the Supreme Court ruled in favor of Texaco and Shell Oil in Texaco v. Dagher.  Argued in early January,  the Dagher case involved a challenge to the pricing practices of Equilon, a joint venture of Texaco and Shell Oil for the production and distribution of oil in the Western US.    The district court ruled in favor of Texaco and Shell Oil, concluding that the pricing practices resulted from the unilateral decision of Equilon rather than the collusive efforts of Texaco and Shell Oil.  The Ninth Circuit reversed, holding that Equilon's pricing was collusive under the ancillary effects doctrine.   The Supreme Court, in an 8-0 opinion downloadable below,  reversed the Ninth Circuit, following the reasoning of the district court.  While not expressly creating an exemption for joint ventures from Section One claims (as Texaco and Shell Oil had urged),  the Court concluded that when competitors pool resources and risk by creating a joint venture in a market where they no longer operate,  pricing decisions are unilateral and not collusive.

Download dagher.pdf

Removing the presumption of market power...

The Supreme Court handed down its much anticipated decision in Illinois, overturning the Federal Circuit and overruling the presumption of market power in antitrust tying arrangements involving patents.    In an 8-0 opinion, authored by Justice Stevens with Justice Alito not participating, the Supreme Court held that the ownership of a patent in a tying arrangement does not create a presumption of market power, contra dicta in its 1984 Jefferson Parish decision.  In a short, too the point opinion, the Court pointed out that presumption arose out of its patent misuse jurisprudence and that Congress had overruled this presumption for patent misuse in its 1988 amendments to the Patent Act.    In Illinois Tool, downloadable below, the Court removes the presumption of market power in the antitrust context, creating parity with the market power issue in the patent misuse context.

Download illinois_tool.pdf