Remedy Issues in Section 2 Cases

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Frank Fisher, Apr 05, 2007

The question of how to design remedies in Section 2 cases is not an easy one. Unlike prospective mergers, which can be blocked, or price-fixing and other collusion cases, where actions can be enjoined, single-firm monopoly cases even when won on liability can founder on remedy design. Structural relief can be seen as too drastic, and injunctive relief can simply turn into an effort to prohibit actions already in the past and already obsolete or can require continued (and perhaps continual) judicial supervision.

Too often in the past, the antitrust authorities have failed adequately to consider the problem of remedies, and I am glad to see this set of hearings taking place.

In these remarks, I first discuss the desirable objectives that a Section 2 remedy (or, perhaps, any antitrust remedy) should have, and then go on to a discussion of the Microsoft case.

1. Principles and Objectives Please note that the following objectives are not necessarily listed in order of importance. Further, be aware that, even if an objective is obtainable considered alone, it may conflict with other objectives.

A. Restore competition. A primary objective should surely be the undoing of the anticompetitive effects of the violation. If possible, a remedy should restore the market or markets to the state in which they would have been had the violation not taken place. Of course, this may not be possible. Indee