Antitrust refers to the regulation of the concentration of economic power, particularly with regard to trusts and monopolies. Antitrust laws exist as both federal statutes and state statutes. The three key federal statutes in Antitrust Law are the Sherman Act Section 1, the Sherman Act Section 2, and the Clayton Act. Section 1 delineates and prohibits specific means of anticompetitive conduct, and Section 2 deals with end results that are anti-competitive in nature. Sections 1 and 2 supplements each other in an effort to outlaw all types of anticompetitive conduct. The Clayton Act regulates the mergers or acquisition of the companies together with the guidelines published by the Department of Justice and the Federal Trade Commission. As for the states, many have adopted antitrust statutes that parallel the Sherman Antitrust Act to prevent anticompetitive behavior within individual states. Penalties for violating the Sherman Act can be both criminal and civil (most enforcement actions are civil). Criminal prosecutions are limited to intentional and clear violations (ex. price-fixing and rig bids). Criminal penalties for corporations can reach up to $100 million and $1 million for individuals with up to 10 years in prison. Additionally, the maximum fine may be increased to twice the amount the conspirators gained from the illegal act or twice the amount of money lost by the victims of the crime if either of those amounts is over $100 million. Why Antitrust Laws Matter?The antitrust laws are supposed to promote and protect competition, or, if you will, competitive processes in distinct “lines of commerce” or “relevant markets.” This alone is their proper purpose. They are not intended to punish big companies merely on account of their size or because of their commercial success. Most importantly, the antitrust laws have never been anti-market or anti-business in their underlying conception or in their implementation. On the contrary, the antitrust laws are intended to promote market economics and healthy competition in every market, while checking the abuses that sometimes arise in different markets. The idea behind these laws is that in every market there should be robust competition: If in each market there are many sellers busily competing against one another to sell a particular kind of product or service to paying customers, no seller will be able to take unfair advantage of the buyers, but rather each seller will be obliged to offer its goods or service on attractive terms, and each will be responsive and efficient in its dealings with buyers, who otherwise will simply turn to another, better seller. In other words, vigorous competition in any given market keeps the sellers honest, forcing them to strive continually both to improve their goods and services and to offer them on favorable terms. Customers benefit from this competition. Poorly run companies are run out of business, as they deserve to be. The better run companies and the most honest ones too, tend to prosper. Society as a whole benefits. This is nothing other than marketplace economics working properly and rewarding each of us for our efforts, our talent, and our perseverance. The antitrust laws exist to help marketplace economics to work better. The antitrust laws serve to promote and protect market economics, doing so on the theory that society flourishes the most when it is founded on vigorous competition. Antitrust laws are meant to ensure that these incentives and the resulting excellence and low prices flourish in every market (save those that by their very nature admit the presence of only one seller). The antitrust laws exist not to punish or dismantle successful, prosperous companies, even the most dominant global monopolies of the era. These laws instead are meant to redress or temper the fundamental flaw that seems inherent in unbridled competition. That is, the antitrust laws serve to “correct” the inherent contradiction of market economies. In many key markets, one firm or a clutch of major firms often come to dominate the entire market. Once this happens, competition in this market ceases altogether or at best becomes a pale shadow of its former self. Antitrust laws provide protection and relief from this scenario. If competition obliges sellers to act on their best behavior, then the antitrust laws oblige dominant competitors to do the same rather than abuse their dominance in order to take advantage of their captive customers. The only other alternatives are as follows: What Antitrust Laws Try to AccomplishAntitrust laws, properly understood, are intended to grapple with this market contradiction. In particular they forbid any improper monopoly or any attempt to obtain a monopoly by improper means that is, a monopoly obtained, preserved or attempted by a firm that on purpose has destroyed or tried to destroy its competitors, using anti-competitive tactics whose sole or true purpose has been to undermine rival businesses. The antitrust laws also forbid dominant firms to act in collusion in order to impose unfair commercial practices that tend to subvert “competition on the merits” in any market that they dominate or aim to dominate by means of the improper practice. These laws also outlaw specific kinds of recognized commercial fraud that by their very nature are calculated to destroy competition in the market in which they are employed (the most notable offenders are bid-rigging, price-fixing, and horizontal market allocation). The Charter Principles of Antitrust LawBroadly speaking, the antitrust laws set forth a series of general propositions that serve as the “charter principles” of marketplace economics in the United States. • Monopolization: A monopoly is not unlawful, but obtaining or maintaining monopoly power by anticompetitive means constitutes a serious antitrust offense. Specifically, a defendant firm can be held liable for unlawful monopolization in violation of Section 2 of the Sherman Act if the following matters are proved against it: First, that the defendant firm holds monopoly power in a properly defined relevant market which can be proven by direct evidence of the defendant’s ability to impose supracompetitive prices or by a showing that the defendant makes a dominant percentage of overall sales, and that its market share is protected by strong barriers to entry and expansion. by new rivals as well as strong barriers to expansion by existing rivals; and second, that the defendant firm has acquired or maintained its monopoly power by means of anticompetitive practices which broadly speaking are business practices that the defendant employs to undermine its rivals and obstruct their ability to compete against it rather than to improve its own offerings. If the government proves these points, it will prevail. If the plaintiff is a private litigant, it must also prove its own antitrust injury which means harm that it has suffered in proximate consequence of an anticompetitive aspect of the challenged anticompetitive conduct. • The Quick-Look Doctrine: Business dealings can be condemned as trade restraints under the “quick-look doctrine” when they are novel or little known practices that appear to be “obviously” inimical to competition on the merits, no matter how the relevant market is defined. Federal Antitrust Laws, And What Do They Prohibit?There are three major federal antitrust laws: The Sherman Antitrust Act, the Clayton Act and the Federal Trade Commission Act. How Much Does an Antitrust Lawyer Cost?Typically, antitrust attorneys charge by the hour. Some may charge on a contingency basis, which means that you’re billed a percentage only if you win your case. If you don’t win, your lawyer won’t receive any payment. Since a lawyer runs the risk of not being paid, it’s likely you will only be charged a contingency if you have a very strong case. Negotiate a rate up front so that you know what to expect. What Should I Expect When Working with an Antitrust Lawyer?An antitrust Lawyer should be honest about your chance winning your case and how long the process will take. If you do end up going to court, it’s a long and expensive proceeding. Even though your Lawyer will be able to guide you, you have to commit a lot to the case. Expert testimonies are necessary and will add additional costs. Antitrust cases are often class action suits, so the burden is shared among a group. Although it’s possible for you to win a large settlement, a very likely result is a lot of time and effort with no result. An antitrust Lawyer is the most qualified to advise on your best plan of action, so it’s best to consult with an attorney if you think you have a valid case. Utah Antitrust LawyerWhen you need a Utah antitrust attorney, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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