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Citing corporate concentration and lax enforcement since the Reagan era, the Biden administration has declared a new era of aggressive antitrust prosecution, bringing antimonopoly actions against tech giants such as Meta, Google, and Amazon. But what's so bad about monopoly or corporate concentration? The standard answer appeals to economic consequences, such as higher prices or deadweight losses. This paper offers a different framework. It argues monopolizing can be a form of cheating, which is a wrong that attaches to means, not just ends; an athlete who cheats but loses still does wrong. In particular, this paper argues that certain market-controlling strategies constitute a form of cheating I call 'structural cheating,' best illustrated by the metaphor of creating an unlevel playing field: rather than compete fairly on merits such as product quality and price, a firm that acquires rivals biases the market in its favor, thereby entrenching a dominant position that effectively forces would-be competitors to compete uphill. By framing (alleged) antitrust violations as cheating, while using the FTC's lawsuit against Facebook (now Meta) as a test case, this paper provides a needed corrective to those citing market success as evidence of merit or skill. A further upshot is the structural cheating account better explains the distinctively problematic features of social media market concentration than Heath's Market Failures Approach. More generally, this paper provides a normative lens for analyzing fair market competition and shows why it's not only winning or losing that counts in capitalism, but how one plays the game. [ABSTRACT FROM AUTHOR]

Our study analyzes data from the Corporate Prosecution Registry of the University of Virginia School of Law and Duke University School of Law (Garrett and Ashley, 2023). We examine a subset of corporate violators, namely prosecutions brought under the Sherman Antitrust Act's criminal provisions. The Sherman Antitrust Act of 1890 is a federal statute that prohibits activities that restrict interstate commerce and competition in the marketplace. We utilize the framework of bounded rationality of decision making to hypothesize that prosecutors are influenced by internal and external factors that affect the total monetary penalties ultimately levied on corporate violators of the Sherman Anti-Trust Law's criminal provisions. Specifically, our results indicate that corporate monetary penalties for antitrust corporate offenders are significantly more likely to be lower when the corporate defendant entered into disposition agreements (such as non-prosecution agreements, deferred prosecution agreements, and plea agreements) with the prosecutor and is a company incorporated and registered under U.S. laws. On the other hand, the total monetary penalties imposed on corporate defendants are more likely to be higher when the defendant is a financial institution, a public company, or a Fortune 500 company. [ABSTRACT FROM AUTHOR]

The holder of intellectual property is entitled to exploit its intellectual property in principle. However, China’s Anti-monopoly Law prohibits the anti-competitive refusal to deal, including the refusal to license intellectual property, which might constitute an abuse of market dominance. Existing anti-monopoly rules related to the refusal to license intellectual property in China are rather general and lack a definite test for the assessment, leaving too much discretion for Chinese competition authorities to interpret the law. As the two main antitrust jurisdictions globally, the US and the EU have different approaches to the refusal to license intellectual property. By reviewing comparative experience, the EU approach is more appropriate for China. It is suggested that China should establish a clear-up test to analyse the refusal to license intellectual property cases under the Antimonopoly Law, considering the indispensability of intellectual property and its influences on innovation. Meanwhile, Chinese law should include provisions on the remedy of a refusal to license. In this regard, China can make its anti-monopoly enforcement as to the refusal to license more transparent and build up a stable expectation for both domestic and foreign high-tech undertakings. [ABSTRACT FROM AUTHOR]

Over the last decade, there has been a proliferation of mass antitrust damages cases before national courts of Member States. The procedural landscape varies very much, however, a number of MS have some form of compensatory and/or injunctive collective tool for consumers and other categories of victims from antitrust violations. Croatia has no such system in place, so the purpose of this article is to analyse the potential and limits of assignment and bundling of claims as an alternative to a full-fledged collective compensatory redress mechanism. The paper identifies advantages and possible disadvantages and limitations of this tool. The author argues, that while the general rules of contract law offer wide discretion and possibilities to organize a ‘collective’ action for damages though mass assignment, it falls short of consumer protection measures. [ABSTRACT FROM AUTHOR]

A reform movement is underway in antitrust. Citing prior enforcement failures, deviations from the original intent of the antitrust laws, and overall rising levels of sector concentration, some are seeking to fundamentally alter or altogether replace the current consumer welfare standard, which has guided courts over the past fifty years. This policy push has sparked an intense debate over the best approach to antitrust law enforcement. In this Article, we examine a previously unexplored potential social cost from moving away from the consumer welfare standard: a loss in the information value to the public from a finding of liability. A virtue of the current standard is the knowledge that firms who violate the antitrust laws have harmed consumers. This simple reality is a direct, easy-to-interpret signal to market participants and investors. In contrast, a broader and more nebulous standard--such as a "public interest" approach, which has been proposed by some academics and agency officials--could conceivably water down the information value of a finding of liability. In essence, the greater the license that regulators and courts have to condemn a business practice beyond a finding of harm to consumers, the noisier the signal to the public about what the verdict means. We can call this phenomenon "the stigma dilution effect." To that end, we develop a formal model to gain insight into the role of reputation in the enforcement and deterrence effects of antitrust laws. The model reveals that broadening the welfare standard is likely to weaken the reputational impact of antitrust violations. This dilution can, in turn, have implications that go against what the proponents of abolishing the consumer welfare standard desire. Namely, a new standard could increase, rather than decrease, the frequency of conduct they seek to deter. Thus, our analysis suggests there may be important and underappreciated costs associated with departures from the consumer welfare standard. In fact, the presence of reputational considerations suggests that these departures can produce effects contrary to the stated goals of their proponents. [ABSTRACT FROM AUTHOR]

The Department of Justice (DOJ) has recently reasserted its power to bring criminal prosecutions under section 2 of the Sherman Act. This represents a dramatic break from the DOJ's long-established practice of reserving criminal antitrust prosecutions for "hardcore" cartel behavior assessable under the per se rule rather than the rule of reason. This Article sets out the historical precedent for section 2 criminal prosecutions and explores the many challenges that the DOJ would need to overcome in order to succeed in any such prosecution at trial. The Article concludes that criminal prosecution of alleged unilateral monopolization offenses would present intractable difficulties for the DOJ in particular, given the high criminal standard of proof and the number and complexity of the issues that would need to be proved pursuant to a highly nuanced rule of reason analysis. The Article notes that such a policy would also move the United States further away from the approach to antitrust enforcement in other jurisdictions around the world, with potential knock-on implications for cooperation among enforcers. [ABSTRACT FROM AUTHOR]

28 U.S.C. § 517 allows the Department of Justice (DOJ) to file a statement addressing a governmental interest in any pending suit. This procedural tool laid dormant for decades, utilized sparingly in litigation involving foreign sovereigns. In the 1960s, the government expanded its use to aid in developing civil rights. In 2009, the DOJ deployed Section 517 in a new arena: antitrust. Since then, each administration has followed suit. Though initially criticized, these statements now draw praise from antitrust scholars as a costeffective means for DOJ advocacy. This Article challenges these accolades. Its foundation is an analytical assessment of the DOJ's statements of interest in antitrust cases. This data exposes a dark side to such filings. This Article explains how the DOJ's use of Section 517 can tempt underenforcement of antitrust laws and overreach by the executive branch. This Article further discusses how the DOJ's use of Section 517 wastes already scarce resources necessary to implement the United States' antitrust laws. [ABSTRACT FROM AUTHOR]

One of many "Ticketmaster horror stories" is the ticketing fiasco of the 2022 Taylor Swift tour, with tickets removed from baskets and fans kicked out of the queue, unable to buy tickets. Live Nation Entertainment, the combination of promoter Live Nation and ticketing company Ticketmaster, blamed unexpected demand. But while the company had an incentive to cast blame elsewhere, it also had no reason to care about quality. As a monopolist, it was not subject to a competitive marketplace. It could offer a bad product and not worry about customers fleeing from bots and cyberattacks. Ticketmaster has had control over the ticketing market for decades. And after its merger with Live Nation, the top U.S. entertainment provider, in 2010, its power expanded into promotion, where it has relationships with many of the top artists. Together, the combined company appears to have engaged in multiple antitrust violations. For starters, Ticketmaster harmed ticketing rivals by locking venues into multiyear contracts to take its ticketing services. This is "exclusive dealing." For any venues not part of these arrangements, the company threatened: "You want our artist? You must take our tickets." This is a classic "tying" violation. It engaged in deception when it used "bait-and-switch tactics" in selling tickets to fans that led to a settlement with the Federal Trade Commission (FTC). Putting together all of these--and other--actions presents an overall course of conduct that constitutes monopolization. The typical remedies for antitrust violations lean toward the modest rather than aggressive side. This case is different. The 2010 merger of Ticketmaster and Live Nation required the company to not force venues wishing to book Live Nation artists to use Ticketmaster's ticketing. But there were so many breaches that the consent decree was extended. Given its numerous blatant violations, the company cannot be trusted to undertake actions a court might compel. For that reason, a breakup of Ticketmaster and Live Nation should be the preferred remedy. Taylor Swift fans rightly were upset when Ticketmaster bungled the rollout of tickets for her 2022 tour. We should all be upset. This Article highlights the strong antitrust case against the company and remedy that can fix this. [ABSTRACT FROM AUTHOR]

Competition between life science companies is critical to ensure innovative therapies are efficiently developed. Anticompetitive behavior may harm scientific progress and, ultimately, patients. One well-established category of anticompetitive behavior is the 'interlocking directorate'. It is illegal for companies' directors to 'interlock' by also serving on the boards of competitors. We evaluated overlaps in the board membership of 2,241 public life science companies since 2000. We show that a robust network of interlocking companies is present among these firms. At any given time, 10–20 percent of board members are interlocked; the number of interlocks has more than doubled in the last two decades. Over half of these interlocked firms report over $5 million in historical revenue, exceeding a legal threshold that makes an interlocking directorate a violation of antitrust law. Those interlocks are only illegal if the companies compete, even in part. Using the disease categories for which companies have sponsored clinical trials, we discover that a few markets are responsible for a large fraction of interlocks. We show that in dozens of cases, companies share directors with the very firms they identify as their biggest competitive threats. We provide a data-driven roadmap for policymakers, regulators, and companies to further investigate the contribution of anticompetitive behavior to increased healthcare costs and to enforce the law against illegal interlocks between firms. [ABSTRACT FROM AUTHOR]

The article discusses the competence of a German state court to review an arbitral award for antitrust law violations relating to the decision of the German Federal Supreme Court in the KZB 75/21 case dated September 27, 2022. It provides a summary of the grounds for setting aside an arbitral award under the German Code of Civil Procedure. An overview of the German ordre public and its relationship with antitrust law is presented.

Observers fear that large corporations have amassed too much political power. The central fact that animates this concern is growing economic concentration—the rise in the market share of a small number of top firms. These firms are thought to use their enhanced economic power to capture the government and undermine democracy by lobbying. Many scholars and activists have urged the use of antitrust law to combat this threat, leading a “political antitrust” movement that advocates explicit incorporation of political considerations into antitrust enforcement. Political antitrust has sparked great debate not only in academic circles but also among policymakers. But the debate has been largely data-free; there is little systematic evidence on whether increased economic concentration leads to democratic harms in established democracies. This Article seeks to fill that gap, bringing systematic data analysis to bear on the issue for the first time. We make three contributions. First, we create a comprehensive dataset on lobbying of the federal government, capturing nearly one million records over the past two decades. This data was drawn from the reports required by the Lobbying Disclosure Act as compiled by In Song Kim, to which we contributed by refining the coding, improving the matching between lobbying reports and industry and firm data, and adding new data. Second, we use our dataset to map lobbying patterns, focusing on the connection between economics and politics. Third, we empirically test some postulates of political antitrust. Our findings do not support the political antitrust movement’s central hypothesis that there is an association between economic concentration and the concentration of lobbying power. We do not find a strong relationship between economic concentration and the concentration of lobbying expenditure at the industry level. Nor do we find a significant difference between top firms’ and other firms’ allocation of additional revenues to lobbying. And we find no evidence that increasing economic concentration has appreciably restricted the ability of smaller players to seek political influence through lobbying. Ultimately, our findings show that the political antitrust movement’s claims are not empirically well-supported in the lobbying context. Our findings do not allay all concerns about transformation of economic power into political power, but they show that such transformation is complex and nuanced, and they counsel caution about reshaping antitrust law in the name of protecting democracy. [ABSTRACT FROM AUTHOR]

This Article outlines potential antitrust law claims arising from the NCAA's current regulation of college athletes' name, image and likeness ("NIL"). 2021 was a watershed year for the NCAA. First, it lost 9-0 at the Supreme Court in NCAA v. Alston, an antitrust law case challenging its restrictions on education-related compensation to college athletes. Days later, the effectuation of state laws recognizing college athletes' right to profit from their NIL began. Following its Supreme Court defeat, the NCAA acquiesced from its historic amateurism policy and released an interim policy allowing NCAA athletes to financially benefit from their NIL while remaining eligible. The NCAA provided updated guidance on the policy in 2022, restricting how schools, conferences, and college athletes can engage in the NIL marketplace. This Article examines the antitrust law challenges that could emerge under the NCAA's new restrictions on college athletes' NIL rights. Part I discusses the Supreme Court's decision in NCAA v. Board of Regents for the University of Oklahoma and the marketplace for schools' sport broadcast rights that followed. Part II outlines the legislation and litigation that led the NCAA to change its NIL policy. Part III overviews the marketplace for NIL that subsequently emerged. Part IV discusses the potential antitrust law violations existing under the NCAA's new regulation of college athletes' NIL. Part V concludes with recommendations for the NCAA, athletics departments, conferences and college athletes to address the potential antitrust law violations and explains why Congress should not grant the NCAA antitrust immunity. [ABSTRACT FROM AUTHOR]

Antitrust enforcement proceedings routinely rely on information provided by positive economics. Recognizing that this information may help the court to decide what happened in the case at bar as well as what substantive rule to apply to the case, this article examines how general the information needs to be to bear relevance to each of these decision-making tasks. The examination is conducted in the context of US law, relies on the conventional distinction between adjudicative and legislative facts, and focuses on competitive effects as the paramount type of antitrust facts. Economic inquiries into the competitive effects of the conduct under scrutiny are then shown to be relevant if they take sufficient account of the specifics of the case. This requirement will rarely be satisfied by inquiries based on generic models. In contrast, when deciding on the content of the applicable antirust rule, the court needs comprehensive information about the competitive effects of the entire conduct class. Economic analyses into the effects of specific conduct will hence be hardly relevant. [ABSTRACT FROM AUTHOR]

Copyright of Bucerius Law Journal is the property of Bucerius Law School e.V. and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

So far, there have been several studies conducted on the subject of automotive cartels, and the majority of the studies you see focus exclusively on cartels. Collusion in the automotive industry was relatively uncommon in the past. However, due to the increasing level of competition in this industry, auto manufacturers are increasingly colluding in a number of areas to survive. The Scania cartel case provided us with a clearer understanding of the phenomenon of automotive cartels, as well as how EU competition law is applied to cartel member's violations and how the European Commission approaches complex infringements. Due to this case, it becomes apparent that there are many legal loopholes within the private enforcement sector, and that victims also face a number of challenges when seeking damages from auto manufacturers. [ABSTRACT FROM AUTHOR]

As a leading model of law on abuse of dominance, Article 102 TFEU hosts two notoriously vague concepts: competition on the merits and the special responsibility of a dominant undertaking. The former could mislead abuse assessments into an illusion of inherent impropriety, while the latter is susceptible to expansive interpretations that undermine the pivotal role of dominance. We propose a test centred on the concept of minimum efficient scale, which has been seriously overlooked or even mischaracterized under Article 102, to complement the as-efficient-competitor rationale. This test clarifies—with respect to exclusionary conduct—competition on the merits in a purely efficiency-based way and gives content to the special responsibility concept. It is compatible with the case law and can be operationalized vis-à-vis digital platform markets to tackle practices such as self-preferencing. It shows potential in enhancing the robustness of ex post antitrust when ex ante regulation has become the more popular recourse. [ABSTRACT FROM AUTHOR]

The article addresses the case, National Collegiate Athletic Association (NCAA) v. Alston, wherein the U.S. Supreme Court ruled that NCAA regulations barring education-related incentives for student-athletes violate antitrust principles paving the way for expanded Name, Image, and Likeness (NIL) compensation. Topics discussed include highlights of the case, and how international NCAA athletes are affected by the Alston decision.

Antitrust analyses relegate efficiencies to a second-class status. Not only are they often an after-thought when assessing conduct within a relevant market, but the Supreme Court, in 1963 with its Philadelphia National Bank (PNB) decision, established that efficiencies realized outside of the relevant market construct, that is, “out-of-market” efficiencies, are not even counted. While the PNB case involved a horizontal merger between two Philadelphia banks, many interpret the PNB precedent as establishing a prohibition of out-of-market efficiencies in non-merger cases as well. The precedent and associated out-of-market efficiencies principle have had a profound influence on the enforcement of antitrust laws. Yet, the principle is increasingly out of step with sound assessments of business conduct—particularly in digital markets with network effects. Further, the principle unreasonably handicaps defendants, which is an increasing concern due to the current policy movement to severely tilt antitrust enforcement in favor of plaintiffs. Consequently, this Article argues that the out-of-market efficiencies principle needs serious reform—but in a specific way. Rather than considering “within market” and “out-of-market” efficiencies under different standards (including outright exclusion), there should be one unified, “relevant” efficiency classification. Out-of-market efficiencies must be “interdependent” with the relevant market to be a relevant efficiency—which this Article demarcates based on established economic principles. This reformed approach has the advantage of providing more flexibility to courts to consider adjacent, or related, markets that are not strictly within a relevant market, while also mitigating the administrative burden of assessing all possible efficiency claims. Relevant efficiencies must still be verifiable, and plaintiffs can show that there are less restrictive alternatives available to achieve the same benefit. This proposal seeks to harmonize scholarship that has been highly critical of PNB with scholarship that believes in preserving the precedent. [ABSTRACT FROM AUTHOR]

The downstream-collusion effect is one of the possible impacts on competition after a vertical merger. However, little legal and economic literature has discussed this topic thoroughly. Therefore, this Article first delves into analyzing the harm of the downstream-collusive effect. By using game-theoretic models, we find that the scale of the saved unit cost or downstream cost and the level of heterogeneity between the downstream firms' final goods could affect the incentives of downstream-collusive behavior. Next, we integrate the concepts derived from the models into the Vertical Merger Guidelines and the burdenshifting framework. This economic concept should aid antitrust agencies in assessing the viability of bringing vertical merger challenges with some proof of downstream-collusive behavior. Finally, we address our critiques of the AT&T-Time Warner merger case and take it as an example to demonstrate how to apply the updated burden-shifting framework to a real-world merger case. This should aid federal courts in understanding how to analyze the downstream-collusive effect in future vertical merger cases. [ABSTRACT FROM AUTHOR]

The article focuses on role of efficiency evidence in Matsushita's summary judgment standard and unreasonable for a jury to infer agreement from plaintiff's circumstantial evidence of agreement. It mentions plaintiffs produce direct or strong circumstantial evidence that the defendants privately communicated assurances about future pricing, then no defenses are going to justify summary judgment.

The article focuses on public announcements trade off a lower chance of effectively colluding with a higher chance of escaping detection and conviction if the announcements do result in an agreement to restrain trade. It mentions Department of Justice Antitrust Division's recent enforcement success against the most egregious cartels. It also mentions public announcements by firms for the purpose of coordinating to restrict competition.

One would think that a contractual release of liability for antitrust violations would be subject to exacting scrutiny, lest the violator buy its way into blamelessness. One would be wrong. Whether an antitrust action can be brought despite such releases is governed by the judicially-created "partand-parcel" doctrine, which asks how integral the release is in the anticompetitive conspiracy. Like so many precepts ofAmerican antitrust, the results are not too predictable, and many decades of fitful evolution have only muddied the waters further. At base, the riddle reduces to a conflict between priorities: the private settlement of disputes, conserving judicial resources and respecting individual autonomy, versus the public protection of competition by so-called "private attorneys general" whose suits expose violations. Mindfulness of these competing values, however, points towards a potentially more serviceable and justifiable rule of decision than the partand-parcel doctrine currently offers. [ABSTRACT FROM AUTHOR]

Copyright of Legal Records / Pravni Zapisi is the property of Union University Law School, Belgrade and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article reviews U.S. Supreme Court cases in the October 2020 term that impact labor and employment issues. The cases discussed are Van Buren v. U.S. which involved the Computer Fraud and Abuse Act that imposes criminal liability for intentional access to a computer without authorization, Mahanoy Area School District v. B.L. which involves the First Amendment rights of a high school student attending a public school, and the antitrust case National Collegiate Athletic Association v. Alston.

The article explores the critical role of lower-level employees in managing, enforcing, and concealing illegal price-fixing conspiracies. It mentions courts have made it harder for antitrust plaintiffs to prove collusion through circumstantial evidence and fundamental misunderstanding of how price-fixing cartels actually operate. It also mentions how the judicial failure to appreciate how price-fixing cartels operate has distorted antitrust jurisprudence.

The Clayton Act's vague mandate contemplates a substantial role for courts to determine which acquisitions may substantially lessen competition or tend to create a monopoly. However, following the General Dynamics ruling in 1975, the Supreme Court has been silent on merger doctrine altogether. This hiatus has allowed lower courts to dramatically depart from the Court's 1960s and 70s jurisprudence, leading to a merger doctrine that has shifted from promoting a market of many small firms to focusing on price effects and market share. As a result of this change in goals, courts and regulators have allowed large technology firms with high market shares to purchase small competitors, leading to increased market concentration. An intent-based test would bridge the chasm between jurisprudence with a focus on market share and nascent competitors with little or no market share. Specifically, this Note recommends that courts adopt a three-part analysis it calls the Facebook Two-Step, which involves a factual inquiry into whether a merger is a nascent competitor acquisition, followed by a dispositive examination of the acquirer's intent and, only if that is inconclusive, continuing onto the traditional market share analysis. This fact-based test would closely scrutinize, and give deference to, the subjective intent of the acquirer when reviewing acquisitions of dominant firms' nascent competitors. An intent-based test would prevent the continued dominance and predatory tactics of today's large technology firms and provide courts and regulators with an avenue to bypass the burdensome market definition issues that have become the hallmark of antitrust litigation. [ABSTRACT FROM AUTHOR]

The Herfindahl-Hirschman index (HHI) appears to be the most widely used index of market or industrial concentration. It is a summary measure that indicates the degree of competition, market power, and efficiency within a market or an industry. The HHI is also used by government agencies when evaluating potential violation of antitrust laws and regulations. As emphasized in this paper, and in spite of its several desirable properties, HHI has one serious limitation: it lacks the value-validity property. Lacking this property, caution has to be exercised when using HHI in order to avoid invalid and misleading results and conclusions. A corrected index is developed as a simple reformulation of HHI. Since this new index formulation meets the conditions imposed by the valuevalidity property to a high degree of approximation, and has other desirable properties comparable to those of HHI, the corrected index can safely be used to make various types of comparisons that are true and valid representations of market (industry) concentration. Numerical data are provided to support and exemplify the use of the corrected index. [ABSTRACT FROM AUTHOR]

African countries have long been the victims of the laundering of the proceeds of corruption by politically exposed persons. The effective use of financial intelligence is a critical factor in identifying and tracking these proceeds. In addition, the global nature of money laundering requires the exchange of such intelligence at both the domestic and the international levels. This is the role of financial intelligence units (FIUs). This article critically reviews the operation of FIUs with reference to African countries and argues that, while they make an important contribution to addressing financial crime, further work is required in order to enhance their effectiveness. [ABSTRACT FROM AUTHOR]

Antitrust regulations are meant to promote fair competition in the market, but balancing administrative and legal costs with enforcement can be difficult when multilayered supply chains are involved. The canonical example of this challenge is the landmark Illinois Brick ruling, which limits antitrust damages to only the direct purchasers of a product; for instance, consumers can file antitrust claims against colluding retailers but not against colluding manufacturers—only retailers can file claims against manufacturers. This controversial ruling was meant to reduce legal costs, but it can clearly lead to missed enforcement opportunities. In this paper, we demonstrate how the Illinois Brick ruling interacts with contracts adopted in the supply chain, and we show that otherwise equivalent supply chain arrangements can have markedly different effects. In particular, we find that wholesale price, minimum order quantity, revenue sharing, and quantity discount contracts lead retailers to take legal action against manufacturers in the event of collusive behavior. However, the wholesale price plus fixed fee contract structure (also known as a two-part tariff or slotting fee contract) facilitates collusion among the manufacturers with retailers compensated by the fixed fee and not filing the antitrust litigation. We further demonstrate that collusion is more likely under high demand uncertainty and high competition at the retail level but is less likely under high competition at the manufacturer level. Our paper helps public enforcers identify market conditions conducive to antitrust violations. This paper was accepted by Vishal Gaur, operations management. [ABSTRACT FROM AUTHOR]

Price-fixing conspiracies overcharge consumers by billions of dollars every year. Although such collusion violates antitrust law, hundreds of price-fixing cartels continue to operate unimpeded because they successfully conceal their illegal collusion. Using examples from more than fifty price-fixing conspiracies, this Article identifies and catalogs the various concealment measures that actual price fixers employ to hide their collusion. When engaging in price fixing, respectable business executives use code names and encrypted messages; they register in hotels using aliases; they rendezvous secretly in seedy locations; they create fake trade associations; they hide or destroy incriminating documents; and they falsify their travel documents and expense reports. And if they are ever accused of collusion, they deny the charges and profess that they are reputable businesspeople who would never countenance illegal conduct. Then they tell false cover stories that they have coordinated in advance. This Article explains how federal courts have unwittingly rewarded the various concealment methods commonly employed by price-fixing conspirators. For example, judges treat defendants' documents as inherently accurate, even though price-fixing conspirators routinely fabricate exculpatory documents. Because they do not understand cartel concealment methods, many federal judges are too quick to dismiss price-fixing claims or grant summary judgment to price-fixing defendants. This Article analyzes dozens of cases, across most federal circuits, in which judges have been fooled by-or have failed to appreciate the significance of-cartel concealment methods. [ABSTRACT FROM AUTHOR]