Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Hardcover
Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Electronic
§ 69.01 Overview and Basic Premises
State and federal antitrust laws are designed to promote competition
and freedom in the economic realm. Although common-law origins of
the antitrust laws date back four centuries or more, the basic principles
have now been codified in state and federal statutes.1 The statutes bear
less resemblance, however, to the details of the Internal Revenue Code
than they do to their own common-law origins. The statutes establish
general principles, which have been fleshed out in the century of judicial
interpretation since their adoption.
The substance of federal antitrust law can be divided into several
areas. First, the law regulates "multi-actor" conduct. The law governs
relations among competitors at the same level of production (e.g., a
retailer competes with a retailer, a manufacturer competes with a
manufacturer); these relationships are called "horizontal." The antitrust
laws also regulate relationships between actors at different levels of
production (e.g., relations between a manufacturer and a wholesaler, or a
wholesaler and a retailer), commonly called "vertical" relationships. The
alleged illegal action must affect interstate or foreign commerce.2
Moreover, antitrust deals with "single actor" conduct. The antitrust
laws forbid the wrongful acquisition or maintenance of a "monopoly"
over goods or services. Similarly, the law forbids attempts to acquire
such power through wrongful means. Finally, antitrust regulates the
exercise of monopoly power, even if legitimately acquired.
Between "single actor" and "joint conduct" lies the legal regime of
mergers and acquisitions. Here, too, the antitrust laws attempt to
preclude transactions that might substantially lessen competition or tend
to create a monopoly. Indeed, the federal Clayton Act is often referred to
as an "incipiency" statute, seeking to prohibit mergers or acquisitions
before they result in monopolization.
One federal statute deals specifically with an important aspect of
competition: pricing. The Robinson-Patman Act forbids charging
different prices to different customers for the same product where the
effect of the price difference is to injure competition. The statute permits
various defenses or exceptions to this rule.
Federal antitrust laws generally are enforced by either the Department
of Justice or the Federal Trade Commission. Minnesota antitrust laws are
enforced by the Office of the Attorney General. Both state and federal
antitrust laws include criminal penalties, but except for some of the