Understanding the House Judiciary Committee Majority Staff Antitrust Report

The U.S. antitrust system is undergoing a profound reassessment.  Many events and commentaries have inspired this upheaval.  Among the most important is an inquiry conducted over the past two years by the House Judiciary Antitrust Subcommittee on Antitrust, Commercial and Administrative Law. The Report nominally addresses “competition in digital markets,” but its policy agenda is much broader. The Majority Staff proposes to fundamentally redesign basic elements of the entire U.S. antitrust system, not only concepts involving big tech. The Majority Staff urges Congress to repudiate, in whole or in part, fifteen court decisions. The broader implications of these proposals have received little attention. In this essay, we pose questions about the Report’s larger implications in three areas: (1) the restatement of antitrust system objectives; (2) doctrinal changes involving antitrust procedure; (3) doctrinal changes involving antitrust law’s substantive commands. Overall, we worry that the Report, in its abbreviated discussion of doctrinal reforms, has not come to grips with the administrability implications of overriding certain precedents and replacing them with new decision-making principles.

By William E. Kovacic & D. Daniel Sokol¹

 

I. INTRODUCTION

The U.S. antitrust system is undergoing a profound reassessment. In several areas of antitrust enforcement, the searching reexamination of the system’s aims, methods, and effectiveness is having evident effects. Since mid-October, government antitrust agencies have filed a total of five lawsuits alleging illegal monopolization by leading tech firms — two against Facebook and three against Google. In the past twelve months, the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) have launched a number of challenges to mergers in which the theory of harm involves the absorption of a promising new enterprise by a well-established rival. Antitrust, under its existing tools and with the use of an economics effects-based approach, is going after some of the most high-profile companies of the world.

Many events and commentaries have inspired this upheaval. Among the most important is an inquiry conducted over the past two years by the House Judiciary Antitrust Subcommittee on Antitrust, Commercial and Administrative Law. On October 6, the Subcommittee released a Majority Staff Report on the Investigation of Competition in Digital Markets (Report). The Report’s 459 pages are divided into three parts: a detailed examination of Amazon, Apple, Facebook, and Google; a set of policy recommendations; and an appendix of mergers and acquisitions undertaken by the four companies.

The Report nominally addresses “competition in digital markets,” but its policy agenda is much broader. The Majority Staff proposes to fundamentally redesign basic elements of the entire U.S. antitrust system, not only concepts involving big tech. The Majority Staff urges Congress to repudiate, in whole or in part, fifteen court decisions (thirteen from the Supreme Court, one by a court of appeals, and one by a district court). The broader implications of these proposals have received relatively little attention.

There is a striking difference in how the Report presents the case studies of the four tech giants and how it identifies the disfavored precedents. The case studies are elaborate and rich in detail; the discussion of the doctrinal reforms, many with great significance for the entire U.S. antitrust system, is slim by comparison.

In this essay, we pose questions about the Report’s larger implications in three areas: (1) the restatement of antitrust system objectives; (2) doctrinal changes involving antitrust procedure; (3) doctrinal changes involving antitrust law’s substantive commands. Overall, we worry that the House Judiciary Committee Report, in its abbreviated discussion of doctrinal reforms, has not come to grips with what Professor Phillip Areeda would have called the “administrability” implications of overriding certain precedents and replacing them with new decision-making principles. Meeting Areeda’s administrability challenge would have called for the Report to offer a more detailed vision of the doctrinal framework that would replace the status quo and to discuss how enforcement agencies and courts would apply the new framework effectively in practice.

 

II. GOALS

The Report (page 391) recommends an important restatement of the goals of the U.S. antitrust system:

[T]he Subcommittee recommends that Congress consider reasserting the original intent and broad goals of the antitrust laws, by clarifying that they are designed to protect not just consumers, but also workers, entrepreneurs, independent businesses, open markets, a fair economy, and democratic ideals.

One can imagine a number of scenarios in which tensions among these stated aims might arise. The Report does not suggest a hierarchy of values or a methodology for resolving tradeoffs. Consider two examples in which conflicts might occur and would require courts or enforcement agencies to determine a primacy of aims and an approach for their application.

First, as we discuss more fully below, the restated framework might spur a basic change in the analysis of agreements among competitors. For example, it might accept efforts by a group of small construction firms to justify bid rotation agreements on the ground that such arrangements, by distributing a limited amount of work to all participating firms, enabled all of the companies to remain in business and avoid laying off employees. The arrangement would raise the price paid by purchasers of construction services but could also keep independent businesses alive and save the jobs of their workers.

Second, the concept of a fair economy might tolerate efforts by producers to reduce output in ways that raise prices but arguably control harmful market externalities. In the 1920s and 1930s, the application of the rule of capture to determine ownership in underground petroleum reservoirs led to races by surface property owners to produce crude oil as fast as possible without regard to the larger social interest in conserving this valuable resource and achieving what we today would call environmental sustainability. Should the trial court in United States v. Socony Vacuum Oil Co.² have instructed the jury to consider an argument by the defendant refiners that their concerted plan to curb gasoline output alleviated the impact of improvident production practices that expanded supply but generated negative economic and social externalities?

What would these scenarios mean more generally to the application of the per se rule against collusion? Might not a significant number of arrangements now treated as illegal per se be entitled, at a minimum, to analysis under a more elaborate (and more forgiving) rule of reason? The effectiveness of existing U.S. criminal prosecution of cartel offenses depends substantially on the ability of the DOJ to argue before juries (or more likely accept a plea because parties are risk-averse to jury trials) that the defendants engaged in conduct clearly denominated as inherently illegal. Would an expansion in the scope of cognizable defenses eliminate this clarity and diminish the willingness of juries to return guilty verdicts in criminal cases?

In making its case that U.S. antitrust law should embrace multiple goals beyond serving the interests of citizens as consumers, the Report is not clear as to what analytical standard to follow. Is it an economic-based standard (not always clear in the Report)? If not, what other considerations should inform the application of the law, and how should courts (or agencies) mediate across the different possible factors in terms of a hierarchy of different goals? The Report does not grapple with this important issue.

Overall, it is vital to have a clear statement of the calculus that courts and enforcement agencies should use in substantive antitrust analysis.³ When legal presumptions are arbitrary, this is problematic and ripe for abuse by both government and private parties. Indeterminacy in law also threatens business planning and investment. It is a fair argument that the benefits of a more diverse goals structure warrant toleration of greater arbitrariness and indeterminacy in the application of the antitrust laws. It is difficult to make that judgment without a fuller description of the method by which the new goals framework will be made operational in the routine development and resolution of cases. The Report falls short in this regard.

 

III. ANTITRUST PROCEDURE

The Report proposes repudiating three Supreme Court decisions that establish major pillars of modern antitrust procedure. First, the Report recommends the elimination of the “antitrust standing” requirement established in Associated General Contractors of California, Inc. v. California State Council of Carpenters (AGC)⁴ In this case, the Supreme Court wrestled with an issue that courts confront in many areas of the law: how proximate must the plaintiff be to the injurious conduct in order to obtain relief? In his opinion for the Court majority in AGC, Justice John Paul Stevens situated antitrust law in context of other legal domains in which the issue had arisen, and then discussed the advantages and disadvantages of different approaches for defining the requisite proximity. Acknowledging the imperfections of all possible solutions, Justice Stevens set out the Court’s preferred standard along with criteria for its application. Does the Staff Majority desire to eliminate the proximity requirement entirely in deciding who might seek damages for an antitrust offense? Or did the Staff Majority have an alternative proximity test in mind? Might it have been desirable, in setting a basis for this recommendation, to take testimony from current and former federal district judges with experience in applying AGC’s standing requirements?

The Report also urges the repudiation of Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,⁵ where the Supreme Court established the requirement that a plaintiff seeking damages for an antitrust offense show that it had suffered “antitrust injury” – harm relating to a reduction in competition.⁶ As the Court presented the facts In Brunswick, the effect of the challenged merger had been to enable failing bowling alleys to remain in business. Consumers presumably benefitted.

The Brunswick plaintiffs were rivals to the distressed enterprises. As recounted in Justice Thurgood Marshall’s opinion for a unanimous court, “the sole injury alleged is that competitors were continued in business, thereby denying respondents an anticipated increase in market shares.”⁷ The plaintiffs’ measure of damages was profits assuming that their rivals exited the market minus profits with the rivals continuing in business. The Supreme Court reversed the decision of the court of appeals that had allowed the plaintiff to proceed with its claim for damages.⁸ Justice Thurgood Marshall’s opinion for the Court warned that upholding the lower court’s decision would make all merger-related disruptions in the market actionable in damages “regardless of whether those dislocations have anything to do with the reason the merger was condemned.”⁹

Does the Majority Staff believe the Supreme Court should have upheld the plaintiffs’ trebled claim for lost profits? In support of Brunswick ruling, Justice Marshall quoted the admonition, expressed twice, in Brown Shoe Co. v. United States¹⁰ that the proper aim of antitrust law is “the protection of competition, not competitors.”¹¹ Does the Report mean, at least by implication, to repudiate the use of this language by the Court in Brown Shoe?

Last, the Report proposes “lowering the heightened pleading requirement introduced in Bell Atlantic Corp. v. Twombly.” In Twombly,¹² the Supreme Court approved a motion to dismiss on the ground that the plaintiff had failed to plead sufficient facts to establish a plausible claim of horizontal conspiracy. What less-heightened pleading standard would the Majority Staff propose to replace Twombly’s plausibility requirement – for example, a return to notice pleading? Here, again, would it not have been desirable, before altering a foundation of modern antitrust procedure, to take testimony from current and former federal district judges who have applied Twombly in antitrust cases and to seek their views about how best to define what a plaintiff must plead to avoid a motion to dismiss?

Finally, it seems to us that an evaluation of the antitrust system’s procedural barriers to the prosecution of claims should assess the wisdom of the Supreme Court’s decision in Illinois Brick Co. v. Illinois.¹³ Decided in the same year as Brunswick, Illinois Brick ruled that only direct purchasers have standing to obtain damages from firms accused of violating the antitrust laws. The Report omitted discussion of whether it is time to repeal Illinois Brick.

 

IV. SUBSTANTIVE ISSUES

Antitrust law, in merger and nonmerger cases, employs presumptions to evaluate conduct and allocate burdens of proof and production. Courts rely on various considerations to decide what kinds of evidence are relevant to evaluating business conduct – for example, in recognizing a conclusive presumption of illegality for certain agreements among competitors. Relevant factors in creating presumptions have included the courts’ own experience with the practice in question, learning from economics, and perceptions of the institutional competencies of judges and juries to undertake certain inquiries.

The Report’s recommendations would affect a number of presumptions, conclusive and rebuttable, that support the operation of the existing U.S. system. Below we highlight potential implications of some of the Report’s proposed changes in substantive legal tests.

A. Relaxing Horizontal Prohibitions

The Report could foster a fundamental rethink of doctrine that governs antitrust treatment of horizontal restraints. In United States v. Topco Associates,¹⁴ the Supreme Court used a rule of per se illegality to condemn an agreement by smaller chains of independent grocers to impose territorial restrictions on the use of a brand established by joint venture of the grocers. Does the Report anticipate the abandonment of Topco, or at least the rejection of the per se rule of illegality that the Court applied to condemn the territorial restrictions? Is collusion is no longer to be viewed as the “supreme evil of antitrust”¹⁵ when smaller enterprises or individual entrepreneurs form alliances to combat large, entrenched business enterprises or to bargain for fair wages or other terms of commerce? Does a relaxation of restrictions on horizontal practices eventually restore Appalachian Coals, Inc. v. United States¹⁶ and its toleration of concerted output restrictions to deal with economic distress or require some moderation, as suggested above, of the hardline approach approved in Socony Vacuum?

The Report may cast doubt on other cases that limit the ability of associations and their members to cooperate in ways that courts have condemned as illegal collusion.¹⁷ In Federal Trade Commission v. Superior Court Trial Lawyers Ass’n (Trial Lawyers),¹⁸ the Supreme Court concentrated on the limits of the Noerr-Pennington doctrine and a group boycott by lawyers attacking low fees paid for legal services for indigent defendants. The Court focused on the nature of the competitive harm, which flowed from the boycott rather than the government action in setting the rates. Would the Report elevate consideration of the First Amendment values emphasized by the court of appeals in Trial Lawyers,¹⁹ or repudiate the Supreme Court’s refusal to consider the “social justifications proffered for… [the] restraint of trade”?²⁰ Does the Report reject the Court’s view that “it is not our task to pass upon the social utility or political wisdom of price-fixing agreements”²¹ – at least the suggestion that a court may not consider broader social interests (e.g. related to the maintenance of a “fair economy”) in applying the Sherman Act’s prohibition on restraints of trade?

In National Society of Professional Engineers v. United States,²² the Supreme Court confronted arguments that antitrust law should be applied with a lighter touch in markets for professional services and restrictions on competitive bidding are appropriate in this domain because their customers would not understand that such bidding denies them important non-price, quality-related benefits. In that case, the Supreme Court answered expressly, “The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain—quality, service, safety, and durability—and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers.”²³ Is this assumption now to be weakened or overridden, as well?

As a related matter, does a relaxation of horizontal restraints for media organizations mean that Apple/e-books²⁴ was wrongly decided? Should the courts in that matter have accepted the argument that the Sherman Act should tolerate a combination by one Big Tech platform (Apple) and book publishers to raise prices for the purpose of facilitating entry to challenge another Big Tech platform (Amazon)? If applied in Apple/e-books, such an approach would have overridden antitrust’s most important and high-profile victory against a Big Tech company since United States v. Microsoft.²⁵ One can argue that, at a minimum, the agreement between the publishers was a criminal offense (and one might query why the DOJ did not prosecute this conspiracy as a crime) because of the naked price fixing. One also could argue that Apple fully understood the nature of the publishers’ collective action and willingly facilitated the attainment of their collusive aims. Does this mean that antitrust should also relax the criminal prohibition for collusion that is claimed to be designed to promote new entry – at least if the collusion involves media companies?

B. Proving Efficiencies for Mergers

The Report suggests that firms be required to prove the efficiencies of mergers. No decided antitrust case has been won specifically by the application of an efficiencies defense, although the recent T-Mobile/Sprint case comes closest.²⁶ The empirical merger literature shows that the impact of mergers is ambiguous. The finance literature gives many reasons for the lack of merger efficiencies. Few of these have anything to do with antitrust, such as issues of poor quality of corporate governance by the acquiring firm, poor merger execution and integration, the nature of CEO incentives, the implications of CEO and board connections, firm level ownership structure issues, financing of the deal and the related sources of financing, if the acquisition target is a distressed firm, relevant factors include the nature of post-merger restructuring, target acquisitiveness, broader macro issues of political economy, and issues of governance spillovers.²⁷

Does the Report effectively seek to create a de facto merger ban? Having to prove the efficiencies of certain decisions leaves little room for the exercise of business judgement and the possibility that even intended benefits may not materialize. This would place antitrust out of step with corporate law that provides boards of directors the benefit of the business judgement rule with the valid exercise of informed decision-making.²⁸

C. The 30% Bright Line Rule of Monopoly Power

Typically, under current law, the difference between market power and monopolization requires more than just a market share presumption. It requires behavior that is improperly exclusionary or predatory. The ability to engage in such conduct with only a 30 percent market share, which the Report proposes as a threshold for identifying dominance, is uncommon. The bright line rule also seems to go against economic principles. Case law currently requires an understanding of the nature of the power as well as its impact on the conduct.²⁹ The Report’s new bright line rule also changes the burden (potentially) in a monopolization case because the current formulation focuses on effects rather than on mere market concentration.³⁰

The proposed bright line rule retreats from global best practices that focus on economic effects rather than inferring adverse effects from market share. As the Organization for Economic Cooperation and Development has stated, “Although market share based presumptions of substantial market power might be a convenient tool for a decision maker, their use raises many of the same problems as the use of market shares in general. Market shares can fail to correctly predict whether a firm has substantial market power. Thus, market share-based presumptions must be used with great caution.”³¹ Missing from the Report’s analysis of the bright line rule is a discussion of competitive effects. For example, the Report excludes important aspects to competitive analysis of the strength of market power such as barriers to entry, the ability of incumbents to reposition, efficiencies, contestability, and the role of mavericks among other issues. If there is no substantial market power, then there is no need to take the additional step to determine if there are anticompetitive effects.

D. Making a Design Change a Violation of Section 2, Regardless of Whether the Design Change can be Justified as an Improvement for Consumers

In 1959, Volvo introduced the three-point seatbelt. Since 1959, every major car manufacturer has copied this invention. Presumably, under the Report, this type of innovation could run afoul of Section 2. To ban product design copying even when consumers benefit seems ludicrous. As the Areeda & Hovenkamp treatise concludes, “no responsible commentator proposes to subordinate the public and consumer interest in better products to the preservation of less inventive rivals. If a court were to attempt to do so, moreover, it would find itself without any criteria for comparing the consumer’s losses to the protected firm’s gain; there is no social calculus for the ‘right’ amount to penalize consumers in favor of certain producers.”³²

Overriding design changes also leads to related questions. By overturning Allied Orthopedic,³³ which required a procompetitive justification, what does this do to Microsoft,³⁴ which cautioned that courts should “properly [be] very skeptical” about product design claims.³⁵ The comment that even pro-competitive innovation should be forbidden overturns at least that part of the Microsoft opinion. Is the rest of Microsoft left intact? Does this mean that Berkey Photo³⁶ is also overridden? Innovation-based rivalry is typically pro-competitive. Is overriding it just limited to platform tech? What about pharma cases such as Doryx³⁷ that focus on changes in product design that yield procompetitive benefits?

E. Overriding Brooke Group

Does overriding the predatory pricing recoupment in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.³⁸ also seek to rehabilitate the approach to primary line price discrimination in Utah Pie Co. v. Continental Baking Co.³⁹? Does the Report anticipate a basic revival of enforcement of the Robinson Patman Act – with its expressed concern for improper discrimination – as a core element of government antitrust enforcement? The Report does not explicitly try to revitalize Robinson-Patman but the concern for competitors throughout the Report suggests that Robinson-Patman revitalization via the backdoor is possible.

 

V. CONCLUSION

From time to time as academics, we referee book manuscripts for publishing companies. If asked to review the Majority Staff Report for publication as a book, we would focus the publisher’s attention on the Report’s proposal that Congress repudiate, in whole or in part, various judicial decisions the authors regard as unwise constraints on antitrust enforcement. Our suggestion would be to “revise and resubmit” to address more completely the implications for the U.S. antitrust system that withdrawing or modifying these decisions would entail. We would add a conclusion to the Report that recognized clearly what we have indicated here: that the Report calls for basic change in the U.S. antitrust regime as a whole and not simply its treatment of big tech.

From personal experience, we understand the constraints that a congressional committee and its staff face in preparing a report that distills the learning from extensive hearings and derives policy recommendations.⁴⁰ The only people who think this is an easy thing to do have never done it – especially to meet ambitious deadlines that take little account of the complexity of the undertaking. The Majority Staff Report on the Investigation of Competition in Digital Markets is the joining up of two documents. One is a collection of detailed case studies that will serve as an important reference for years to come. This is an achievement, especially if the Committee releases the testimony of academics who were asked to comment on changes to antitrust law, despite earlier promises made by staff to do so. Such transparency would allow the policy community to better understand what, if any, consensus appears on issues. Other testimony that is not confidential also would be helpful should it be released. As a comparative note, one of the benefits of the bipartisan Antitrust Modernization Committee (“AMC”) Report is that submissions were public, which allowed for detailed study and justification of the positions taken by the AMC. A non-bipartisan Congressional staff report would benefit from the legitimacy that greater transparency would offer.

The second major element of the Report is a body of recommendations set out with different levels of completeness and reflection. Some policy proposals are described more fully and linked to the case studies. Others resemble Tweets – cryptic, thought provoking, and begging for more context and elaboration. The doctrinal reversals sketched (hurriedly, perhaps) at the Report’s end have major implications for the entire U.S. antitrust system, not only its treatment of tech giants. These changes require deeper analysis and discussion. In this sense, the Report’s final pages are not a conclusion but instead a beginning – the first draft of an agenda for new deliberations that consider the doctrinal, procedural, and institutional foundations of the U.S. antitrust regime. The alternative is that this was a list of long held aspirations of various groups but not thought out, in part because these are complex issues and to give them the treatment that they deserve would have required a series of hearings and submissions like the AMC.

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¹ Kovacic is Global Competition Professor of Law and Policy, George Washington University Law School; Visiting Professor, King’s College London; Non-Executive Director, United Kingdom Competition & Markets Authority.  Sokol is Professor of Law, University of Florida and Senior Advisor, White & Case LLP.

² 310 U.S. 150 (1940).

³ See Roger D. Blair & D. Daniel Sokol, The Rule of Reason and the Goals of Antitrust: An Economic Approach, 78 Antitrust L.J. 471, 472 fn. 8 (2012) (“there can be only a single goal if one values consistency and logic.”).

⁴ 459 U.S. 519 (1983).

⁵ 429 U.S. 477 (1977).

⁶ We infer that the Majority Staff also would intend to repudiate a related case not mentioned in the Report. See Cargill, Inc. v. Monfort of Colorado, 479 U.S. 104, 116 (1986) (“Brunswick holds that the antitrust laws do not require the courts to protect small businesses from the loss of profits due to continued competition, but only against the loss of profits from practices forbidden in the antitrust laws.”).

⁷ Brunswick Corp., 429 U.S. at XXX.

⁸ Id. at 489-91.

⁹ Id. at 487.

¹⁰ 370 U.S. 249, 320, 344 (1962).

¹¹ Brunswick Corp., 429 U.S. at 488 (quoting Brown Shoe Co., 370 U.S. at 320) (emphasis in original).

¹² Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

¹³ 431 U.S. 720 (1977).

¹⁴ United States v. Topco Assocs., 405 U.S. 596 (1972).

¹⁵ Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004).

¹⁶ Appalachian Coals v. U.S., 288 U.S. 344 (1933).

¹⁷ United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940); Fashion Originators’ Guild of Am. v. FTC, 312 U.S. 457 (1941); Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939).

¹⁸ 493 U.S. 411 (1990).

¹⁹ Superior Court Trial Lawyers Ass’n v. FTC, 856 F.2d 226, 233 (D.C. Cir. 1986).

²⁰ Id. at 424.

²¹ Id. at 423.

²² 435 U.S. 679 (1978).

²³ National Society of Professional Engineers v. United States, 435 U.S. 679, 695 (1978).

²⁴ United States v. Apple Inc., 791 F.ed 290 (2d Cir. 2015).

²⁵ 253 F.3d 34 (D.C. Cir. 2001).

²⁶ New York v. Deutsche Telekom AG, 439 F.Supp.3d 179, 217 (S.D.N.Y. 2020) (“In sum, the Court concludes that Defendants’ proposed efficiencies are cognizable and increase the likelihood that the Proposed Merger would enhance competition in the relevant markets to the benefit of all consumers. However, mindful of the uncertainty in the state of the law regarding efficiencies and Plaintiff States’ pertinent criticisms, the Court stresses that the Proposed Merger efficiencies it has recognized constitute just one of many factors that it considers and do not alone possess dispositive weight in this inquiry.”).

²⁷ Luc Renneboog & Cara Vansteenkiste, Failure and success in mergers and acquisitions, 58 J. Corp. Fin. 650 (2019).

²⁸ See e.g. Smith v. Van Gorkom, 488 A.2d 858, 874 (Del. 1985); Kahn v. M & F Worldwide Corp., 88 A.3d 635 (Del. 2014); Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del. 2015).

²⁹ See Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution 157–58 (2006).

³⁰ United States v. Microsoft Corp., 253 F.3d 34, 58–59 (D.C. Cir.), cert. denied, 534 U.S. 952 (2001).

³¹ OECD, Evidentiary Issues in Proving Dominance 2006 at 8.

³² Areeda & Hovenmap ¶781.

³³ Allied Orthopedic Appliances, Inc. v. Tyco Health Care Group.

³⁴ U.S. v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001).

³⁵ Id. at 65.

³⁶ Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979). Transamerica Computer Co. v. IBM Corp., 698 F.2d 1377 (9th Cir. 1983).

³⁷ Mylan Pharms. Inc. v. Warner Chilcott Pub. Ltd. Co., 838 F.3d 421, 439 (3d Cir. 2016) (“Defendants were motivated by an intent to compete with generics, the evidence nonetheless demonstrates that Defendants’ product modifications had no anticompetitive effects on the market.”).

³⁸ 509 U.S. 209 (1993).

³⁹ 386 U.S. 685 (1967).

⁴⁰ One of us (Kovacic) spent a year (1975-1976) as a research assistant for the majority staff of the Senate Judiciary Subcommittee on Antitrust and Monopoly as the Subcommittee prepared reports on what became the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and a proposal to restructure the petroleum industry (the Petroleum Industry Competition Act of 1976).