SCOTUS Raises Anti-Trust Bar... Lowers Best Judgment Bar

Supreme Court Raises the Bar on Antitrust: Price-Fixing, Joint Ventures Affected

The Supreme Court last week, ruling in the final two of a trio of antitrust challenges this term, significantly raised the bar for those attempting to prove anti-competitive behavior by joint ventures and certain patent holders.

The high court decisions, said antitrust litigators and scholars, reflected a court trying, in one case, to "catch up" with current economic thinking, and in another case, to "clean up" a lower court ruling that put at risk a widely used business arrangement.

History Lesson: The corporate power brokers caused the introduction of anti-trust legislation--most notably the Sherman Anti-Trust Act--because there was unfair business practices. What SCOTUS has done is a basic and utter unreaveling of the very principles found in such legislation. Raising the legal bar lowers the protections for those of us unfortunate enough not to own umpteen million shares of corporate stock.

And depending on which side of the courtroom one sits, the justices' rulings either enhanced competition and efficiencies in the marketplace or encouraged anti-competitive conduct likely to harm consumers and small businesses.

Guess which side of the courtroom most of us are on... If you guessed it was the side where you get the shaft stuck to you, YOU'RE RIGHT! Just like the unfair bankruptcy rules, the corporation--a fictitious person--has gained new rights it never should have had in the first place.

Of the three antitrust decisions this term, the two with the most significant impact are the two decided last week: Texaco Inc. and Shell Oil Co. v. Dagher, nos. 04-805 and 04-814 (combined for decision), and Illinois Tool Works Inc. v. Independent Ink, No. 04-1329. The third case, decided on Jan. 10, was Volvo Trucks North America Inc. v. Reeder-Simco GMC Inc., No. 04-05, a decision with narrower application, according to antitrust experts.

The high court has not taken many antitrust cases for decision in recent terms. Three in one term is a significant number, said some experts, but does not necessarily imply a renewed interest in this area of the law.

Let us hope that a new congress will undo what this ultra-conservative, pro-government and pro-big business activist court has done.