ABA Section of Antitrust Law provides comment to Antitrust Modernization Commission regarding exclusionary conduct

In response to requests for comment by the Antitrust Modernization Commission regarding exclusionary conduct, the Section of Antitrust Law has recently provided feedback on behalf of the section. The views in the comment paper [PDF] have not been adopted by the House of Delegates or Board of Governors and do not represent ABA policy.

On the basic question of how standards for exclusionary or anticompetitive conduct should be determined, and on current standards regarding refusals to deal, the essential facilities doctrine and bundling and bundled pricing, the Antitrust Section noted that it believed that statutory change is unnecessary.  "In the absence of consensus and in light of the trend in the courts to use [the refusals to deal and essential facility] doctrines sparingly, it is unnecessary for the Commission to seek legislative reform," said the section, adding that improvements could be made in specific instances or by agency guidelines.  With respect to bundling and bundled pricing, the section noted that there is a lack of clarity on competitive effects and no consensus as to the correct standard, saying, "Further refinement of the treatment of bundling and bundled pricing should be left to common law development under the Sherman Act."

In further outlining its views, the section wrote that there is wide agreement on the general legal framework for the three offenses prohibited under Section 2 of the Sherman Act, and that the areas of consensus are broader than the areas of disagreement.  However, there is "lively and continuing debate about the specific standards for distinguishing exclusionary or predatory conduct from aggressively competitive behavior."

The comment paper also included an overview of issues in controversy, including recent briefs offered by both federal enforcement agencies and private amici and scholarly works that offer a broad range of views on the problem of assessing the competitive effects of exclusionary conduct; the impact of Trinko with respect to refusals to deal, and background on the essential facilities doctrine.

The Section of Antitrust Law, along with the Section of International Law, has also filed comments [PDF] with the European Commission on the "Commission Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses," which covers many of the same issues outlined in the comments to the Antitrust Modernization Commission.

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