Law Antitrust - Instructor: Dwight Drake FTC v. Superior Ct. Trial Lawyers Assoc. (1990) Base Facts: Boycott by D.C. trial lawyers who demanded higher fees before taking court appointed assignments. Rates were raised and FTC sued for violation of FTC act. Appellate Ct. remanded on grounds that it was “expressive boycott” and FTC should have inquired into market power and First Amendment freedoms. What is an “expressive” boycott? Did lawyers have market power? What if select individual lawyers refused assignments until fees raised? When are there too many?

Law Antitrust - Instructor: Dwight Drake California Dental Assoc. v. FTC (1999) Base Facts: California Dental Assoc. included 75% of all Cal. Dentists. Rules (1) prohibited across the board discounts, (2) prohibited promotional statements about cheap or reasonable prices, (3) prohibited claims about quality or superior services, (4) discouraged solicitations, and (5) imposed disclosure requirements for advertising discounts. FTC held price constrains illegal per se and non-price constrains illegal after quick look under Sherman 1 because of market power. Ct. of Appeals affirmed after quick look. What is purpose of quick look? What was purpose of restrictions? What effect – anti or pro competitive? Who was hurt by restrains? Are less restrictive restraints possible?

Law Antitrust - Instructor: Dwight Drake Matter of Polygram Holdings, Inc. (FYC 2003) Why did Polygram and Warner Bros. agree to not advertise and discount ’90 and ’94 recordings? When did FTC say per se analysis applicable? Note: Advertising “performs indispensable role in the allocation of resources in a free market. Why was argument relative to future ventures defective?

Law Antitrust - Instructor: Dwight Drake Parker v. Brown (1943) Basic Facts: California regulated raisin producers so as to restrict competition among growers and maintain prices. Why did Brown, a raisin grower, sue? Why was State involvement so important? Do states have the power to exempt any business from the reaches of the Antitrust laws? Did the fact that most of the raisins produced in Cal are shipped out of state make a difference? Should it make a difference? Compare to thrust of the FAIA of 1982 re: exports? What if the Parker v. Brown issue arose in Italy?

Law Antitrust - Instructor: Dwight Drake Eastern Railroad President’s Conf. v. Noerr Motor Freight (1961) Basic Facts: Competing railroads joined to convince Pennsylvania Governor to veto legislation that would have allowed truckers to compete for large loads. What was railroads’ bottom line purpose? Was it a good, legitimate purpose or just political greed? What if railroads had made agreement with truckers? How important was the means here?

Law Antitrust - Instructor: Dwight Drake Allied Tube & Conduit Corp v. Indian Head Inc. (1988) Basic Facts: National Fire Protection Ass. refused to approve use of plastic electric conduit. Steel conduit interests stacked political process in Association to prevent plastic approval. Jury awarded $3.8 million damages under Sherman claim. Dist. Ct. entered judgment NOV on theory that Noerr- Pennington applied because association was “akin” to legislature. What impact did Association have on state and local fire codes? How did Allied Tube differ from Noerr case? Compare the actions and purposes of steel players with those of railroads in Noerr.

Law Antitrust - Instructor: Dwight Drake What if competitors join together to bring a lawsuit which stops others from entering market or competing? Could the lawsuit itself be a basis for a Sherman 1 violation? How might such a lawsuit hurt a new player? What if the lawsuit has no substance – is frivolous? Should Noerr Pennington protect any petition to the courts?

Law Antitrust - Instructor: Dwight Drake Group Boycotts Issue: Do group boycotts of businesses violate Sherman 1 if the purpose of the boycott is to force legislative change? What if the boycotts are organized and promoted by competitors of those being hurt? Does the nature of the desired legislation make a difference?