The Law of Antitrust, An Integrated Handbook

Lawrence A. Sullivan

Warren S. Grimes, Southwestern School of Law

Christopher L. Sagers, Cleveland State University College of Law

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Table of Contents

The nearly ten years since the last edition of this book have seen controversy and public interest in antitrust like no other time in perhaps seventy years or more. It is too soon to say what the consequences will be or whether they will have lasting significance, and indeed it can seem that there was more talk about antitrust than there was concrete action. But change and turmoil there unquestionably have been, and they have required substantial changes and new material in this new edition of the Treatise.

This revision includes the following new material:

• Coverage of the most visible popular issue in antitrust in many years, the so-called “consumer welfare” controversy. We review the debate and its contestants, lay out some problems in their various positions, and suggest our own picture of antitrust reform, one we think is widely shared and desirable: a revitalization of certain traditional antitrust perspectives and rules, an approach we describe as the “protecting competition” standard.
• Coverage of the extraordinary contemporary interest in Big Tech markets, which generated a long-running and closely watched congressional investigation, a raft of bipartisan legislative proposals (which have yet to bear fruit), promises of action from both the Trump and Biden administrations, and a flurry of government lawsuits against the Big Tech firms that mostly are still ongoing. See, e.g., House Committee on the Judiciary, Subcomm. on Antitrust, Commercial, and Administrative Law, Investigation of Competition in Digital Markets (2020); United States v. Google, LLC, 1:23-cv-00108 (D.D.C. Jan. 24, 2023) (complaint); FTC v. Facebook, Inc., 1:20-cv-03590-JEB (D.D.C. Jan. 13, 2021) (complaint); Texas v. Google, LLC, 4:20-CV-957-SDJ (E.D. Tex. Dec. 16, 2020) (complaint); United States v. Google, LLC, 1:20-cv-03010 (D.D.C. Oct. 20, 2020) (complaint). Among the many open questions as the policy moves forward are how the courts will deal with unilateral exclusion in tech markets and strategic, non-horizontal acquisitions; market definition and the treatment of “free” products; data privacy as an antitrust concern; and the significance of the Court’s two-sided platform approach in Ohio v. American Express, 138 S.Ct. 2274 (2018).
• Coverage of several other doctrinal developments, including:
  • The broader impacts of the new two-sided platform economics in American Express, which likely will impact market definition, proof of anticompetitive harm, vertical restraints, and other matters.
  • The unanimous plaintiffs’ victory in the college athletics case, NCAA v. Alston, 141 S.Ct. 2141 (2021), which was groundbreaking at least within amateur athletics. Alston may also have clarified some points in the law of Sherman Act Section 1, but it left other important questions conspicuously open—including whether monopsony plaintiffs must prove downstream consumer injury, and whether antitrust harms can be balanced against out-of-market efficiencies.
  • Completely re-written discussions of law of horizontal restraints and joint venture law, with special attention to the Supreme Court’s glosses on Sherman Act Section 1 in American Express and Alston.
  • Re-written discussion of the law of monopolization, with special attention to theoretical developments in the law of price predation, a newly written consideration of the “profit-sacrifice” test and other efforts to develop a unified theory of exclusion, and the evolving law of unilateral refusals-to-deal in cases like Viamedia, Inc. v. Comcast Corp., 951 F.3d 429 (7th Cir. 2020), and Steward Health Care Sys. v. Blue Cross & Blue Shield of Rhode Island, 997 F. Supp. 2d 142 (D.R.I. 2014).
  • Revised coverage of merger law, including a completely new treatment of vertical mergers to capture the substantial change and development in that area. Included are discussions of the government’s spectacular loss in United States v. AT&T, 310 F. Supp. 3d 161 (D.D.C. 2018), aff'd sub nom. U.S. v. AT&T, Inc., 916 F.3d 1029 (D.C. Cir. 2019), the evolving economics of bargaining and foreclosure, and the enforcement agencies’ adoption of new Vertical Merger Guidelines in 2020—their first revision in nearly 40 years—which would then be withdrawn following a change in administration just over a year later.
  • New material on the interface of antitrust and intellectual property, with a special focus on the Ninth Circuit’s extraordinary hostility to patent hold-up claims in FTC v. Qualcomm, Inc., 969 F.3d 974 (9th Cir. 2020).

Learn more about this series.