Comments on: Alito and Antitrust (Part II) http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/ Academic commentary on law, business, economics and more Fri, 29 Aug 2008 04:32:16 +0000 http://wordpress.org/?v=2.3.3 By: accident lawyer http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-929 accident lawyer Mon, 27 Mar 2006 09:38:37 +0000 http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-929 <strong>accident lawyer...</strong> accident lawyer... accident lawyer…

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]]> By: TRUTH ON THE MARKET » Bargaining in the Shadow of Justice Alito http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-372 TRUTH ON THE MARKET » Bargaining in the Shadow of Justice Alito Sat, 18 Feb 2006 23:31:25 +0000 http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-372 [...] David Fischer at Antitrust Review posts an excerpt from Information Resources, Inc.’s (IRI) press release issued to explain the recent settlement of their ten year long litigation against VNU (A.C. Nielsen, IMS Health, and Dun and Bradstreet). IRI’s claims were based on an “above cost” bundling theory that Thom has discussed in detail here. In that post, Thom expressed optimism (like me) about Justice Alito’s influence on the Supreme Court’s antitrust jurisprudence in large part because of his sensible dissent in LePage’s. It looks like we do not have to wait long to for evidence of that influence. Notice this section from IRI’s press release: Even if IRI were to prevail at the Second Circuit on the bundling issue, both litigation teams felt there was a significant risk that the Supreme Court would rule against IRI if it accepted the case for appeal, particularly in light of the current make-up of the Supreme Court and the fact that Justice Alito, the newest addition to the Supreme Court, was the author of an appellate court decision in 2002 that was adverse to IRI’s bundling position in this case. Although Justice Alito’s position was overturned on en banc review by the Third Circuit Court of Appeals in 2003, Justice Alito has recently expressed his opinion that his original view of that case was correct. [...] […] David Fischer at Antitrust Review posts an excerpt from Information Resources, Inc.’s (IRI) press release issued to explain the recent settlement of their ten year long litigation against VNU (A.C. Nielsen, IMS Health, and Dun and Bradstreet). IRI’s claims were based on an “above cost” bundling theory that Thom has discussed in detail here. In that post, Thom expressed optimism (like me) about Justice Alito’s influence on the Supreme Court’s antitrust jurisprudence in large part because of his sensible dissent in LePage’s. It looks like we do not have to wait long to for evidence of that influence. Notice this section from IRI’s press release: Even if IRI were to prevail at the Second Circuit on the bundling issue, both litigation teams felt there was a significant risk that the Supreme Court would rule against IRI if it accepted the case for appeal, particularly in light of the current make-up of the Supreme Court and the fact that Justice Alito, the newest addition to the Supreme Court, was the author of an appellate court decision in 2002 that was adverse to IRI’s bundling position in this case. Although Justice Alito’s position was overturned on en banc review by the Third Circuit Court of Appeals in 2003, Justice Alito has recently expressed his opinion that his original view of that case was correct. […]

]]> By: TRUTH ON THE MARKET » Antitrust Law and Competition for Distribution http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-173 TRUTH ON THE MARKET » Antitrust Law and Competition for Distribution Mon, 30 Jan 2006 06:17:40 +0000 http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-173 [...] Thom recently posted about Judge Alito’s comments on the recent Lepage’s decision involving bundled discounts offered to retailers. There is presently much debate among antitrust scholars regarding the proper treatment of “above-cost” price cuts, such as the bundled discounts in Lepage’s. The anticompetitive theory in these cases is not that discounts mask what is effectively “predatory pricing.” Rather, the theory is that the payments will deprive rivals from achieving minimum efficient scale for a period of time long enough to prohibit meaningful competition. [...] […] Thom recently posted about Judge Alito’s comments on the recent Lepage’s decision involving bundled discounts offered to retailers. There is presently much debate among antitrust scholars regarding the proper treatment of “above-cost” price cuts, such as the bundled discounts in Lepage’s. The anticompetitive theory in these cases is not that discounts mask what is effectively “predatory pricing.” Rather, the theory is that the payments will deprive rivals from achieving minimum efficient scale for a period of time long enough to prohibit meaningful competition. […]

]]> By: Josh http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-84 Josh Sat, 21 Jan 2006 06:09:30 +0000 http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-84 Nice post Thom. You have certainly identified the central issue here: how antitrust law can sensibly deal with the potential anticompetitive threat of above-cost pricing strategies (in their various forms) foreclosing rivals from achieving minimum efficient scale for a significant period of time. I am sympathetic to the approach that you suggest in your paper, and in particular, the requirement that the plaintiff show that it could not achieve a bundled sale with other producers. I plan to post some additional thoughts on the role of antitrust in regulating practices such as bundled discounts, slotting fees, exclusive dealing contracts, and payments for product placement, which I collectively refer to as "competition for distribution." Nice post Thom. You have certainly identified the central issue here: how antitrust law can sensibly deal with the potential anticompetitive threat of above-cost pricing strategies (in their various forms) foreclosing rivals from achieving minimum efficient scale for a significant period of time.

I am sympathetic to the approach that you suggest in your paper, and in particular, the requirement that the plaintiff show that it could not achieve a bundled sale with other producers. I plan to post some additional thoughts on the role of antitrust in regulating practices such as bundled discounts, slotting fees, exclusive dealing contracts, and payments for product placement, which I collectively refer to as “competition for distribution.”

]]> By: F^3 http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-54 F^3 Thu, 19 Jan 2006 01:31:21 +0000 http://www.truthonthemarket.com/2006/01/18/alito-and-antitrust-part-ii/#comment-54 Your post is thought provoking. I never thought scotch tape and envelopes could be so stimulating. Your post is thought provoking. I never thought scotch tape and envelopes could be so stimulating.

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