The 2010 Horizontal Merger Guidelines give increased treatment to a topic that was not well developed in previous Guidelines – namely, mergers that threaten to restrain innovation. The 1968 Guidelines had contained a statement on innovation to the effect that:
the Department has used Section 7 to prevent mergers which may diminish long-run possibilities of enhanced competition resulting from technological developments that may increase inter-product competition between industries whose products are presently relatively imperfect substitutes.
1968 Merger Guidelines, III, 20.
The 1984 Guidelines noted briefly that market share figures might overstate a firm’s competitive significant if riv [...]
The Eighth Circuit’s recent decision in Southeast Missouri Hospital v. C.R. Bard, Inc., ___ F.3d ___, 2010 WL 3220600 (8th Cir. Aug. 17, 2010), aligns this Circuit with the Ninth Circuit’s decision in Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 906-07 (9th Cir.2008).. Under those decisions the Sherman Act tests for exclusion by means of a bundled discount is the so-called “attribution,” test, in which the entire discount is attributed to the “exclusion product,” which is the one from which rivals are allegedly excluded. If the fully attributed discount brings the price below the relevant measure of cost (average variable cost in the Cascade case), then the discount [...]
In American Needle, Inc. v. National Football League, 130 S.Ct. 2201 (2010), the Supreme Court held that the NFL acting through its incorporated subsidiary NFL Properties, Inc. (NFLP) was not a single entity but rather a combination of its 32 individual member teams for purposes of the plaintiff’s antitrust challenge to an exclusive licensing agreement. The teams had licensed their trademarks and insignia exclusively to NFLP, which then issued a single exclusive license for the production of logo-bearing caps to Reebok, thus ousting American Needle or anyone else from producing NFL caps.
The American Needle decision could conceivably rest on alternative rationales for its separate entity [...]
