Competition Laws of the United States:

In the United States, as in most other countries, there are various laws that regulate competition and which are intended to promote the welfare of the ultimate consumer. This course will examine each of the principal laws in the United States that regulate competition so that the student gains a comparative understanding as to how a country like the United States with a long developed body of competition law operates.
In the first session, the student will be introduced to the three principal competition laws in the United States: (a) Section 1 of the Sherman Act which regulates contracts, combinations or conspiracies in restraint of trade, (b) Section 2 of the Sherman Act which regulates monopolies and attempts to monopolize, and (c) Section 7 of the Clayton Act which prohibits mergers and acquisitions that may tend to lessen competition.

In the second session, we will examine in greater detail Section 1 of the Sherman Act emphasizing that Section 1 is directed at concerted or joint action of two or more actors and not unilateral or single firm conduct. The session will also examine the requirement that for the joint action to be unlawful under Section 1 it must be shown to be an unreasonable restraint of trade and what makes joint conduct unreasonable or anticompetitive.

In the third session, we will study various types of conduct that are prohibited by Section 1 of the Sherman Act, such as agreements to fix price or rig bids, divide markets, or allocate customers between competitors.

In the fourth session, we will examine Section 2 of the Sherman Act which regulates unilateral or single firm conduct that results in monopolization or attempted monopolization of a market. In order to understand monopolization, the student will first learn how to define properly a product and geographic market for purposes of United States competition law. We will also examine what constitutes monopoly power, including both market share as an indicator of market power and other indirect or circumstantial evidence of monopoly power, such as barriers to entry and market structure. The session will also examine the elements of an attempt to monopolize violation.

In the fifth session, we will distinguish between a lawfully acquired monopoly which is not prohibited under US Competition Law and an unlawful monopoly that has been acquired, enhanced or maintained through anticompetitive or exclusionary conduct, including predatory or below cost pricing intended to eliminate competitors from the market or otherwise harming the ability of competitors to compete.

In the sixth session, we will examine how mergers and acquisitions are regulated by the federal antitrust enforcement agencies in the United States under Section 7 of the Clayton Act which prohibits such mergers and acquisitions if they may tend to lessen competition substantially. We will review the various elements of a Section 7 claim, including defining the relevant market to assess the probable effects of the merger or acquisition, determining the existing and potential competitors in the market, the market share and concentration levels in the market post-merger, and the probability that the merger or acquisition will result in an increase in price to consumers or a reduction in product innovation and service. We will also examine the two principal ways in which a merger may violate Section 7 of the Clayton Act: unilateral effects where the merged company is viewed as being able to raise price or restrict output on its own, and coordinated effects in which the anticompetitive effects of the merger are found because the merger is seen as facilitating the ability of competitors in the market to coordinate their pricing and other market behavior.

In the seventh session, the student will examine certain merger challenges that were brought by the United States antitrust enforcement agencies and study why courts in the United States prohibited certain mergers from occurring under Section 7 of the Clayton Act.

In the eight session, the student will be introduced to how competition laws are enforced in the United States both by the federal antitrust enforcement agencies in civil and criminal actions as well as by private parties such as consumers in civil litigation.

In the ninth session, we will compare the United States Competition Laws to the laws of other countries with active competition enforcement, principally comparing the United States Competition Laws discussed above to the laws of the European Union.
The course will be taught by Joseph Tringali, who was a partner at the United States Law firm Simpson Thacher & Bartlett where he specialized in United States Competition Law and represented clients in seeking the approval of United States antitrust enforcement agencies for numerous mergers and acquisitions, as well as having represented companies in numerous civil litigations alleging price fixing, bid allocation, and monopolization.

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