If you want to bring an antitrust suit based on an illegal agreement among competitors (say, a boycott), you face a possible Catch-22: you can’t get the evidence you need to prove an illegal agreement until you file the suit (and conduct discovery), but you can’t file an antitrust suit unless you are able to provide sufficient evidence of the agreement in your complaint.
This is the problem the plaintiff faced in Evergreen Partnering Group v. Forrest, decided by the First Circuit on June 19th. Evergreen alleged that the defendants (a small group of companies that controlled the disposable plastics industry) refused in concert to deal with it—in other words, they boycotted Evergreen.
Massachusetts federal district court judge Richard Stearns dismissed the case on the complaint, holding that Evergreen had failed to plead a viable claim of conspiracy to boycott. In other words, the complaint didn’t contain enough “facts” to establish, directly or through inference, that the defendants had entered into an agreement to boycott.… Read the full article
Surely, Google doesn’t want to go through what so many dominant companies in the U.S. have had to suffer – government antitrust scrutiny, in the form of merger/joint venture challenges and even, God forbid, a Microsoft-like monopolization suit. For better or worse, intensive antitrust scrutiny is the price of success in the U.S., and while it can’t be avoided altogether, perhaps it can be minimized. Or so Google hopes.
To that end, Google has made available a webinar entitled “Google, Competition and Openness.” Consumerwatchdog.org is not buying it, and their “anonymous mark-up” of the document (giving it a grade of “F”), is embedded from Scribd.com, below.
All of the news articles I’m seeing about how aggressive the newly appointed antitrust enforcers may be puts me in a mind to reminisce.
When I graduated law school in 1979 I went off to what was then called Howrey & Simon, at that time the self-proclaimed antitrust heavyweight of D.C., and maybe the entire country. We certainly believed this to be true, and maybe it was. Back then there was no American Lawyer, and no one was really keeping score.
At Howrey it was all antitrust all the time. The firm was involved in massive trials in distant locations – a four month trial in Houston, requiring the rental of suites of condos and an entourage that would challenge a U.S. President and staffed like the U.S. army — was not uncommon; in fact, cases like that were taken for granted. And, according my “law of antitrust litigation” (which is: all antitrust cases must be tried twice, < appeal, > appeal), some of these trials were “seconds.… Read the full article
A new administration often means a new approach to federal agency enforcement of the antitrust laws. And, a shift from Republican to Democrat often means more aggressive enforcement by the DOJ and FTC. The business and legal communities want to know, what can we expect?
[C]opyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtile and refined, and, sometimes, almost evanescent.
— Folsom v. Marsh, 9 F.Cas. 342 (C.C.D. Mass. 1841)