Class 4 Antitrust, Winter, 2018 Counting Entities 11/18/2018 Class 4 Antitrust, Winter, 2018 Counting Entities Randal C. Picker James Parker Hall Distinguished Service Professor of Law The Law School The University of Chicago Copyright © 2000-18 Randal C. Picker. All Rights Reserved.

2 = 1 November 18, 2018

1 = 2+ November 18, 2018

11/18/2018 November 18, 2018 Sherman Act

11/18/2018 November 18, 2018 Sherman Act Sec. 1

11/18/2018 November 18, 2018 Sherman Act Sec. 2

11/18/2018 November 18, 2018 Sherman Act Sec. 8

Copperweld Key Question: Narrow Key Question: Bigger 11/18/2018 Copperweld Key Question: Narrow Can a parent corp and its wholly-owned sub provide the requisite contract, combination or conspiracy required for a Section 1 violation? Key Question: Bigger Does the Sherman Act put forward an independent view of firm organization? November 18, 2018

Copperweld Different Doctrinal Angle 11/18/2018 Copperweld Different Doctrinal Angle Single firms face liability only for monopolization (SA2), but not for unreasonable restraints of trade (SA1) November 18, 2018

Copperweld The Consequence of the Intra-Enterprise Conspiracy Doctrine 11/18/2018 Copperweld The Consequence of the Intra-Enterprise Conspiracy Doctrine If Ps and (wholly-owned) Ss can’t conspire, we insulate even more conduct from unreasonable restraint of trade review November 18, 2018

Regal Corp History November 18, 2018 Copperweld (US 1984)

Regal Corp History November 18, 2018 Copperweld (US 1984)

The Regal Corporate History 11/18/2018 The Regal Corporate History What part of this is relevant for antitrust? November 18, 2018

11/18/2018 Combination? What is a “combination in the form of trust or otherwise”? Why aren’t Copperweld and Regal such a combination? November 18, 2018

Unreasonable Restraint of Trade 11/18/2018 Sherman 1 & 2 Coverage Unreasonable Restraint of Trade Monopolization Joint Activity SA 1 SA 2 Single-Firm Activity Not covered November 18, 2018

11/18/2018 Where Does this Put Us? Is Independence left without a remedy for the behavior here? What tools does the government have to solve the problem of the aligned activity of Copperweld and Regal? November 18, 2018

11/18/2018 “The business is giving exhibitions of base ball, which are purely state affairs. … But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business.” November 18, 2018 Federal Baseball (US 1922)

“As it is put by the defendants, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place.” November 18, 2018 Federal Baseball (US 1922)

“It seems that this language would have made it clear that the Court intended to isolate these cases by limiting them to baseball, but since Toolson and Federal Baseball are still cited as controlling authority in antitrust actions involving other fields of business, we now specifically limit the rule there established to the facts there involved, November 18, 2018 Radovich v NFL (US 1957)

“i. e. , the business of organized professional baseball “i.e., the business of organized professional baseball. As long as the Congress continues to acquiesce we should adhere to—but not extend—the interpretation of the Act made in those cases.” November 18, 2018 Radovich v NFL (US 1957)

November 18, 2018 Sports Broadcasting Act of 1961 (15 USC 1291)

November 18, 2018

November 18, 2018

November 18, 2018 American Needle Complaint

November 18, 2018 American Needle Complaint

Is the NFL a Single Entity? 11/18/2018 Is the NFL a Single Entity? Says the 7th Circuit (3-0) “Simply put, nothing in § 1 prohibits the NFL teams from cooperating so the league can compete against other entertainment providers. Indeed, antitrust law encourages cooperation inside a business organization—such as, in this case, a professional sports league—to foster competition between that organization and its competitors.” November 18, 2018

Is the NFL a Single Entity? 11/18/2018 Is the NFL a Single Entity? Says the 7th Circuit (3-0) “Viewed in this light, the NFL teams are best described as a single source of economic power when promoting NFL football through licensing the teams’ intellectual property, and we thus cannot say that the district court was wrong to so conclude.” November 18, 2018

November 18, 2018

Five Tries at Licensing Hats 11/18/2018 Five Tries at Licensing Hats Bears Lions Each sets a separate price for team-logo hats. Packers Vikings November 18, 2018

Five Tries at Licensing Hats 11/18/2018 Five Tries at Licensing Hats Bears Lions Each team agrees to set a particular price for hats. Packers Vikings November 18, 2018

Five Tries at Licensing Hats 11/18/2018 Five Tries at Licensing Hats Nike Bears Lions Each team licenses logos and delegates hat prices to Nike. Packers Vikings November 18, 2018

Five Tries at Licensing Hats 11/18/2018 Five Tries at Licensing Hats NFLP Bears Lions Each team licenses logos and delegates hat prices to NFLP. Packers Vikings Assume NFLP owned by NFL teams November 18, 2018

Five Tries at Licensing Hats 11/18/2018 Five Tries at Licensing Hats NFL Bears Lions Packers Vikings NFL is a single entity from the getgo. November 18, 2018

November 18, 2018 Chicago Fire

November 18, 2018 Seattle Sounders

November 18, 2018 Seattle Sounders

11/18/2018 Link November 18, 2018

November 18, 2018 The New York Times, 18 Feb 2015