Congress designed these federal antitrust laws to eradicate certain frequently used anticompetitive practices of which the following are a few.Section 2 of the Sherman Act prohibits monopolization, attempts to monopolize, and conspiring to monopolize. Any such act constitutes a felony. A monopoly conviction requires proof of the individual having intent to monopolize with the power to monopolize, regardless of whether the individual actually exercised the power.
Price-fixing occurs when a company or companies within a given market artificially set or maintain the price of goods or services at a certain level, contrary to the workings of the free market. Section 1provides that price-fixing is an illegal restraint on trade, regardless of whether a vertical or horizontal scheme. A vertical scheme is a scheme among parties in the same chain of distribution. A horizontal scheme occurs among competitors on the same level.
In 1911 vertical price-fixing schemes became a per se violation of Section 1 when the Supreme Court interpreted the statute in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373. However, in the landmark case of Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. __ (2007), the Supreme Court overturned the 96-year-old Dr. Miles precedent and held that courts should apply the rule of reason when analyzing vertical price-fixing schemes. The ruling renders all vertical limitation schemes subject only to the rule of reason.
Collusive bidding occurs when two or more competitors agree to change the bids they otherwise would offer absent the agreement. Under Section 1, collusive bidding is per se illegal.
A tying arrangement is an agreement by a party to sell one product only on the condition that the buyer agrees either to buy different products from the seller or not to buy those different products from another seller. Tying arrangements are subject to the rule of reason unless the arrangement shuts out a substantial quantity of commerce in which case the scheme is per se illegal.
Section 2 makes illegal a firm's refusal to deal with another firm if the refusing firm refuses for the purpose of trying to monopolize the market. Meanwhile, section 1 prohibits a group from refusing to deal with a particular firm. A group refusal to deal is known as a group boycott. Because of seemingly contradictory Supreme Court decisions over the years, the question of whether group boycotts are subject to the rule of reason or a per se rule has been left murky.
Exclusive dealing agreements require a retailer or distributor to purchase exclusively from the manufacturer. These arrangements make it difficult for new sellers to enter the market and find prospective buyers, thus depressing competition. However, because companies widely-use requirements contracts, which essentially are exclusive dealing agreements, for purposes that promote competition, exclusive dealing arrangements only face rule of reason scrutiny.
Below-cost pricing intended to eliminate specific competitors and reduce overall competition is known as predatory pricing. Section 2 disallows this conduct. In Brooke Group Ltd. v. Brown & Williamson Tobacco, 509 U.S. 209 (1993), the U.S. Supreme Court devised a two-part test to determine if predatory pricing had occurred. First, the plaintiff must establish that the defendant's production costs surpass the market price charged for the item. Second, the plaintiff must establish that a "dangerous probability" exists that the defendant will recover the investment in above-cost inputs. InWeyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc. (05-381) (2007), the Supreme Court said that this test also applies when determining if a predatory bidding scheme exists.