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Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Hardcover
Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Electronic
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CHAPTER 69
ANTITRUST
§ 69.01 Overview and Basic Premises
State and federal antitrust laws are designed to promote competition
and freedom in the economic realm. Although common-law origins of
the antitrust laws date back four centuries or more, the basic principles
have now been codified in state and federal statutes.1 The statutes bear
less resemblance, however, to the details of the Internal Revenue Code
than they do to their own common-law origins. The statutes establish
general principles, which have been fleshed out in the century of judicial
interpretation since their adoption.
The substance of federal antitrust law can be divided into several
areas. First, the law regulates "multi-actor" conduct. The law governs
relations among competitors at the same level of production (e.g., a
retailer competes with a retailer, a manufacturer competes with a
manufacturer); these relationships are called "horizontal." The antitrust
laws also regulate relationships between actors at different levels of
production (e.g., relations between a manufacturer and a wholesaler, or a
wholesaler and a retailer), commonly called "vertical" relationships. The
alleged illegal action must affect interstate or foreign commerce.2
Moreover, antitrust deals with "single actor" conduct. The antitrust
laws forbid the wrongful acquisition or maintenance of a "monopoly"
over goods or services. Similarly, the law forbids attempts to acquire
such power through wrongful means. Finally, antitrust regulates the
exercise of monopoly power, even if legitimately acquired.
Between "single actor" and "joint conduct" lies the legal regime of
mergers and acquisitions. Here, too, the antitrust laws attempt to
preclude transactions that might substantially lessen competition or tend
to create a monopoly. Indeed, the federal Clayton Act is often referred to
as an "incipiency" statute, seeking to prohibit mergers or acquisitions
before they result in monopolization.
One federal statute deals specifically with an important aspect of
competition: pricing. The Robinson-Patman Act forbids charging
different prices to different customers for the same product where the
effect of the price difference is to injure competition. The statute permits
various defenses or exceptions to this rule.
Federal antitrust laws generally are enforced by either the Department
of Justice or the Federal Trade Commission. Minnesota antitrust laws are
enforced by the Office of the Attorney General. Both state and federal
antitrust laws include criminal penalties, but except for some of the
Roger J. Magnuson is a Partner at Dorsey and Whitney, LLP, where he serves as Head of the National Strategic Litigation Group and has practiced since 1973. He has been recognized as one of the top trial lawyers in the United States by major national and international publications, including Chambers International Guide to American Lawyers, which profiles the top 500 trial lawyers in the United States, Best Lawyers in America, Who's Who in American Law, and Who's Who in America. Mr. Magnuson was also recognized by a Journal of Law and Politics' survey for Judge's Choice "Wins Most Cases."
Some high profile cases that he has litigated include representation of the Florida Senate in the Bush v. Gore election controversy in 2000; and representation of the Plaintiffs in the widely publicized and studied Mall of America case. For several years he has represented, among other persons and entities, the Minnesota Twins and Major League Baseball principals and players in litigation; and has litigated national and local cases in federal and state court venues. He has appealed before the Supreme Court in a number of cases; as well as the Minnesota Supreme Court. He has authored several articles and 7 books.
Richard A. Saliterman is a Principal in Saliternan & Siefferman P.C., a full-service firm in Minneapolis established in 1976. Mr. Saliterman is a leading expert on corporate business matters, and is the author of several publications on business start-ups, franchises, and trademarks. Mr. Saliterman is the former National Judge Advocate for the U.S. Navy League, based in Washington D.C.
Contributing Editor:
Amanda Chang
Contributing Authors:
Alecia Anderson
Seth Back
John Baker
Shannon Berg
Constatin Burachek
Benjamin Carpenter
Ryan Check
Carl Christensen
Peter Fear
Michael Frasier
Aaron Hall
Catherine Hanson
Paul Harman
Amy Ithlan
Michael Kern
Chris Kuhlman
Brett Larson
Joshua Lederman
Karen Lundquist
James Magnuson
Jennifer Mead
Rao Menier
Heidi Miller
Rachael Moxon
Oliver Nelson
Scott Peitzer
Mitchell Skinner
Jonathan Stechmann
Lael Weinberger
Jonathan Wilson
Alex Zumbulyadis
