Tuesday, September 29, 2009

The Energy Antitrust Handbook, Second edition

Posted by D. Daniel Sokol

The ABA has come out with the second edition of the Energy Antitrust Handbook.

This Second edition of the Energy Antitrust Handbook presents a guide to an industry of increasing importance to the U.S. economy. It is written to assist energy, regulatory, and antitrust lawyers in understanding the multilayered complexity of this field by providing a basic background on antitrust issues in the energy industry. The principal focus of the first edition of this handbook was on electricity and natural gas, this edition has been broadened in scope to include more sectors of the energy industry.

By reading this book, lawyers already familiar with antitrust law will gain an understanding of related energy issues, the market structure, and the application of the antitrust laws to these industries. Lawyers and executives already familiar with the energy industry, but not with antitrust law, will find this book provides an understanding of the antitrust laws applicable to energy.

The energy industry has been at the center of the development of the antitrust laws. In particular, the oil industry has been the source of many seminal antitrust cases. The electric and natural gas industries also have contributed several seminal cases, but have been subject to substantial if not complete antitrust immunity in light of pervasive federal and state regulation until the introduction of competition in the late 1980s and 1990s. Although the electric and natural gas industries continue to be subject to less pervasive regulation, new antitrust issues and concerns about "market manipulation" have become the focus of scrutiny in the electric, natural gas, and petroleum industries.

The nine chapters in this handbook cover a range of issues as follows:

--Chapter I provides an introduction to the energy industry.

--Chapter II is an overview of the history of regulation and deregulation of natural gas and electricity.

--Chapter III provides a discussion of the antitrust immunities and defenses available in many energy cases, including the filed rate doctrine, state action immunity, Noerr-Pennington immunity, and implied repeal.

--Chapter IV discusses mergers, acquisitions, divestitures and related issues. Although FERC formally adheres to the DOJ/FTC Merger Guidelines, its application of those guidelines to the electric power and gas industries is unique.

--Chapter V focuses on joint ventures and joint action by competitors, and includes a discussion of the DOJ/FTC Competitor Collaborations Guidelines. Because recent efforts to accelerate the pace of deregulation are frequently based on the establishment of federally encouraged joint ventures [for example, Independent System Operators (ISOs)] this chapter is of particular importance to both energy and antitrust lawyers.

--Chapter VI focuses on monopolization issues. Because the electric and gas industries have moved toward deregulation, a discussion of conduct designed to maintain or acquire monopoly power is particularly relevant. Much of the electric power/antitrust discussion on essential facilities is contained in this section.

--Chapter VII deals with pricing issues, including agreements among competitors affecting price, such as price fixing, and single firm pricing conduct.

--Chapter VIII discusses issues related to nonprice agreements, including joint conduct to exclude competition, territorial agreements, and exclusive dealing arrangements.

--Chapter IX addresses the market manipulation rules that are the subject of new and vigorous debate at the agencies.

While each of these chapters discusses standard antitrust analyses, the application to these industries is often unusual because of both regulated and unregulated aspects to these practices.


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