Jonathan Pollard has significant experience litigating antitrust claims under Sections 1 and 2 of the Sherman Act as well as claims under the Florida Antitrust Law including claims involving complex issues such as price-fixing and patent abuse by a monopolist. Representative matters include:
- Kimberly Clark Worldwide, Inc. v. First Quality Baby Products, Case No. 1:09-CV-1685 (M.D. Pa.) (representing a Pennsylvania-based consumer products company against industry giant Kimberly Clark in prosecuting antitrust counterclaims based on patent misuse)
The Sherman Act: The Basis for Antitrust
The Sherman Act prohibits:
- Contracts, combinations and conspiracies in restraint of trade (Section 1).
- Monopolization, attempts to monopolize, and conspiracies to monopolize (Section 2).
The Sherman Act and the relevant body of case law interpreting the Act is vast and incredibly complex. Some key points to note:
Section 1 – Contracts & Combinations
- Naked Restraints of Trade: The most clear-cut examples of antitrust violations are horizontal restraints of trade among competitors. Examples include price-fixing and market allocation schemes. These types of restraints are innately so anticompetitive that they are likely to be considered per se or automatic violations of the antitrust laws. Almost every other potential antitrust violation will be evaluated under what is known as a rule of reason analysis: This basically just means reasonableness.
- Vertical Restraints of Trade: Vertical restraints of trade generally, by nature, are less likely to raise anticompetitive concerns. Vertical restraints are almost always evaluated under the rule of reason. Typical vertical restraints include the following:
- Tying: The seller has market power in a particular product. The seller says if you want this product, you also have to buy this other product. Basically, the seller is using its power in one market to force buyers to purchase another product that they do not want.
- Exclusive dealing: A party agrees to purchase only from a particular manufacturer or distributor. These are tough claims to prove and require a high degree of market foreclosure and clear anticompetitive effects.
- Resale Price Maintenance: The seller fixes the price at which the buyer can resell the product. Both minimum and maximum resale prices are subject to the rule of reason.
Monopolization & Attempted Monopolization
- Monopoly power: There is no claim for monopolization unless the defendant has monopoly power in the relevant market and has maintained that power through some type of unfair or anticompetitive means.
- Threshold: As a general rule, it is unlikely that monopoly power exists with a market share of anything less than 50%.
- Anticompetitive conduct: In order for a monopolist or attempted monopolist to be liable for antitrust violations, there must be anticompetitive or exclusionary conduct. This is a rule of reason, anticompetitive effects must outweigh any competitive benefits analysis.
- Harm to competition: Harm to a competitor is irrelevant. The antitrust laws are not meant to protect competitors. They are meant to protect competition itself.
- Antitrust standing: Here’s where many plaintiffs lose their antitrust cases. They lack antitrust standing. This happens all the time. Big firms pursue antitrust cases, rack up hundreds of thousands of dollars in fees and then lose the case on antitrust standing. Any antitrust lawyer with half a brain knows that antitrust standing and Article III standing are two very different things. Antitrust standing is much narrower. In order for a plaintiff to have antitrust standing, the plaintiff must have (1) antitrust injury (harm of a type that the antitrust laws were designed to prevent) and (2) must be an efficient enforcer. Let’s unpack this: Antitrust injury is the anticompetitive effect of an anticompetitive act in violation of the antitrust laws. There should be a causal chain. Efficient enforcer is much more complicated. That requires the plaintiff to demonstrate – in brief – that they have a direct injury, clear damages are well-suited to vindicate the alleged harm.
Robinson-Patman Act: Price Discrimination
Here’s the most misunderstood and maligned antitrust law on the books today: The Robinson-Patman Act of 1936. The Act prohibits price discrimination. The Act was enacted to address the comparative competitive advantage that large purchasers would have versus small purchasers in the marketplace. The Act can be best understood through an actual example:
Example of Actionable Price Discrimination
Take two companies that sell various printed paper advertising products: Company A and Company B. A and B both buy paper inputs from paper manufacturers. They print their products and then sell those products to end-users. Company A is massive and has induced the paper manufacturers to treat it as a favored customer and give it lower prices than the prices extended to its competitors, like Company B. Company A has even gone so far as to threaten to pull its business from paper manufacturers if they offer the same pricing to Company B. The result? Company B pays more for the same products/inputs. Company B cannot compete with Company A. This is a classic Robinson-Patman claim. In fact, this specific example is drawn from the recent case Millcraft Paper v. Veritiv Corporation (N.D. Ohio 2016) in which the court denied the defendant’s motion to dismiss.
Elements of a Price Discrimination Claim
Drawing from a recent federal appellate decision, these are the elements of a Robinson Patman Act claim:
(1) that multiple sales were made to two different purchasers in interstate commerce; (2) that the product sold was of the same grade and quality; (3) that defendant discriminated in price as between the two purchasers; and (4) that the discrimination had a prohibited effect on competition.
Defenses to Robinson Patman Claims
Functional Availability: The plaintiff claims price discrimination, but in fact, the seller made the same terms available to the plaintiff. For example: The seller offers a discount for an exclusive relationship with downstream distributors. The plaintiff declined to enter such an exclusive relationship (meaning refused to make the seller its exclusive supplier). In such a scenario, the same price was functionally available to the plaintiff, but the plaintiff opted not to take the deal. Note: Volume discounts can get tricky and CAN violate the RPA when smaller customers cannot afford to participate.
Cost Justification: This defense is rarely raised because it is so difficult to prove. If the buyers are buying the same exact product, then the cost to make that product should be the same. In order to establish this defense, a RPA defendant would have to prove that the price discrimination was based on differences in the costs of manufacturing, distributing or delivering the same exact goods.
Changing Conditions: Think fire sale. Market conditions changed drastically. The products at issue are perishable, deteriorating or seasonal. The seller is a distressed company under court process.
Meeting Competition: The seller was matching a lower price set by one of its competitors. Suppose a long-time buyer goes to its widget supplier and says, “I’m taking all my business to Widget Co. because they’re giving me a better price.” That is potentially a defense for the seller: meeting competition in the market place. Note: Sellers can rely on the buyer’s representations. They don’t need to launch an investigation and confirm their competitors prices (and doing so can get sticky because of potential price fixing claims).