USA ANTITRUST LAWS

The antitrust laws derive from the commerce clause of the US Constitution and are set forth in various federal and state statutes. The federal statutes address interstate commerce, while the state ones address intrastate commerce within the state. Owing to a very expansive interpretation of the term "interstate commerce," virtually any significant commercial transaction can be said to affect "interstate commerce" and therefore be deemed subject to federal antitrust regulation. Even so, some practitioners prefer for various reasons to plead their antitrust claims in state court, even when so doing means overlooking significant aspects of the case. The state statutes and case law incorporate the federal standards, so that in most instances it is not possible to litigate an antitrust case in state court without having a thorough grasp of federal antitrust law.

SIGNIFICANT ANTITRUST LEGISLATIONS IN THE USA Here is a brief summary of the principal federal statutes, followed by general comments on the state statutes, nearly all of which are expressly modeled after the Sherman Act: The Sherman Act5 This statute is the premier article of federal law. It is the original, principal, and foremost antitrust statute in the United States, setting forth the broad statutory proscriptions that act as a "charter of the marketplace" and "constitution of competition law" in American jurisprudence. The Sherman Act in its current form provides both civil remedies and criminal penalties for the principal antitrust violations --conspiracies to restrain trade, monopolization, attempted monopolization, and conspiracies to monopolize. The Sherman Act is worded in broad, open-ended language, so that clever competitors cannot elude its provisions by lawyerly evasions and

2.1. USA ANTITRUST LAWS The antitrust laws derive from the commerce clause of the US Constitution and are set forth in various federal and state statutes. The federal statutes address interstate commerce, while the state ones address intrastate commerce within the state. Owing to a very expansive interpretation of the term "interstate commerce," virtually any significant commercial transaction can be said to affect "interstate commerce" and therefore be deemed subject to federal antitrust regulation. Even so, some practitioners prefer for various reasons to plead their antitrust claims in state

court, even when so doing means overlooking significant aspects of the case. The state statutes and case law incorporate the federal standards, so that in most instances it is not possible to litigate an antitrust case in state court without having a thorough grasp of federal antitrust law.

2.2. SIGNIFICANT ANTITRUST LEGISLATIONS IN THE USA Here is a brief summary of the principal federal statutes, followed by general comments on the state statutes, nearly all of which are expressly modeled after the Sherman Act: The Sherman Act5 . This statute is the premier article of federal law. It is the original, principal, and foremost antitrust statute in the United States, setting forth the broad statutory proscriptions that act as a "charter of the marketplace" and "constitution of competition law" in American jurisprudence. The Sherman Act in its current form provides both civil remedies and criminal penalties for the principal antitrust violations -conspiracies to restrain trade, monopolization, attempted monopolization, and conspiracies to monopolize. 6 The Sherman Act is worded in broad, open-ended language, so that clever competitors cannot elude its provisions by lawyerly evasions and Sherman Act, the Clayton Act, and the Robinson-Patman Act. Significantly, Section 5 of the FTC Act confers additional authority on the FTC, allowing it to test the limits of antitrust policy. An aggrieved firm that concludes that it has no civil remedy under the Sherman Act or Clayton Act might decide that its best recourse is to complain to the FTC, asking that it invoke its authority under Section 5 of the FTC Act in order to investigate the matter and initiate administrative proceedings in order to enjoin the challenged conduct.

 The Hart-Scott-Rodino Act10 . This federal statute imposes disclosure requirements for certain kinds of mergers, acquisitions, and other fusions of two or more business operations. The duty to make a disclosure depends on the size of the transaction and the size of the participating companies. If a firm wishes to conduct a transaction that is covered by this Act, it must first make prescribed disclosures to the FTC and Department of Justice-Antitrust Division. The State Statutes. In addition to the federal statutes, each state in the United States has its own antitrust statutes. These statutes, which govern intrastate commerce, typically incorporate the statutory proscriptions and case law interpretations of the Sherman Act, which remains the statute of reference and premier article of antitrust legislation in the United States.

2.3. ENFORCEMENT AGENCIES11

The Federal Government The U.S. Department of Justice (DOJ) Antitrust Division enforces the federal antitrust laws. Final decisions issued by the DOJ may be appealed to a U.S. Court of Appeals and, ultimately, to the U.S. Supreme Court. If the DOJ's position is upheld, it may, in certain circumstances, seek consumer redress in court. If the company violates a DOJ order, the Anti-trust division may also seek civil penalties or an injunction. Only the DOJ can obtain criminal sanctions. The DOJ also has sole antitrust jurisdiction in certain industries, such as telecommunications, banks, railroads, and airlines. DOJ often work with other regulatory agencies to provide support for their competitive analysis. States

State attorneys general can play an important role in antitrust enforcement on matters of particular concern to local businesses or consumers. They may bring federal antitrust suits on behalf of individuals residing within their states ("parens patriae" suits), or on behalf of the state as a purchaser. The state attorney general also may bring an action to enforce the state's own antitrust laws. Private Parties Private parties can also bring suits to enforce the antitrust laws. In fact, most antitrust suits are brought by businesses and individuals seeking damages for violations of the Sherman or Clayton Act. Private parties can also seek court orders preventing anticompetitive conduct (injunctive relief) or bring suits under state antitrust laws. Individuals and businesses cannot sue under the FTC Act. Issues of International Jurisdiction U.S. and foreign competition authorities may cooperate in investigating cross-border conduct that has an impact on U.S. consumers12. In addition, as more U.S. companies and consumers do business overseas, federal antitrust work often involves cooperating with international authorities around the world to promote sound competition policy approaches. There are now more than 100 foreign competition agencies13 .

2.4 CARTEL ENFORCEMENT IN THE USA The cartel prohibition is statutory (Sherman Act 1). Federal law, along with most state statutes, provides for both criminal and civil sanctions, and applies to both individuals and corporations. Section 1 of the Sherman Act prohibits: Every contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations. Criminal prosecutions under the statute are focused on hard core antitrust

violations, e.g., price-fixing, bid rigging, and market allocation.

2.4.1 Cartel Prohibition Enforcers The Antitrust Division of the United States Department of Justice (Anti-trust Division) is the principal government enforcer of the criminal aspects of the law. The Assistant Attorney General (nominated by the President and confirmed by the Senate) leads the Division, delegating supervision of criminal enforcement matters to the career Deputy Assistant Attorney General and his subordinate, the Director of Criminal Enforcement. Investigations are conducted through the Divisions National Criminal Enforcement Section in Washington, D.C. and seven regional field offices. The Divisions criminal trial attorneys work with a range of law enforcement professionals, including agents from the Federal Bureau of Investigation, state law enforcement officers, U.S. Attorneys offices, and foreign authorities in international cases.

OBJECTIVES OF US ANTITRUST LAW

Anti trust laws in the United States make illegal all contracts, combinations, and conspiracies which are deemed to be in restraint of trade A court will examine all the facts and circumstances surrounding any particular conduct in question in order to ascertain whether the contract or combination violates the the law by restraining trade unreasonably. The antitrust laws are enforced by the Antitrust Division of the Department of Justice and the Bureau of Competition of the Federal Trade Commission, as well as by private suits for treble damages instituted by persons or firms injured by antitrust violations. A company or person found liable of an antitrust violation in a civil suit brought by a private plaintiff may be forced to pay up to three times the actual damages suffered by the plaintiff, as well as all of the plaintiff's costs of litigation and attorney's fees.

And finally, absent some sort of blatant violation, the courts will apply a rule of reason analysis to evaluate standard-setting activities. Since product standards offer a host of procompetitive effects, these benefits weigh heavily in the judicial balance.
The Federal Trade Commission has prepared and made available various guidelines for business applicable to activity of standards setting organizations. Antitrust Guidelines for the Licensing of Intellectual Property Antitrust guidelines for Collaboration among competitors issued jointly by the FTC and US Department of Justice ANTITRUST ENFORCEMENT GUIDELINES FOR INTERNATIONAL OPERATIONS ISSUED BY THE U.S. DEPARTMENT OF JUSTICE AND THE FEDERAL TRADE COMMISSION

The courts have elaborated certain practices that also apply to standards setting procedures. No matter what the procedure or how much due process the standard-setting body affords a complaining party, if the standard is anticompetitive it is not justified by the reasonableness of the procedure used to implement it. Competitors cannot use standards to facilitate otherwise anticompetitive activities. Wrapping otherwise anticompetitive acts in the clothing of a product standard cannot justify the restraint. Standards that restrain trade, even if the standard-setting body has legitimate reasons for the restraint. Even a standard designed to achieve a socially desirable objective cannot do so through anticompetitive means. Competitor manipulation of product standards may lead to antitrust liability even for the standard-setting body. Standard-setting bodies cannot enforce product standards through anticompetitive means.