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Our Antitrust Experience and Expertise

We have substantial experience addressing each of the below-listed antitrust issues on behalf of plaintiffs, defendants, businesses, standard-setting organizations, amnesty applicants, and subjects and targets of criminal investigations. We have litigated most of these issues and advised our clients about all of them.

Federal Antitrust Issues

California Antitrust Issues

Related Issues

Federal Antitrust Issues

Liability under Section 1 of the Sherman Act: Horizontal price-fixing, horizontal market allocation, bid-rigging, horizontal group boycotts, coordinated refusals-to-deal, tying arrangements, exclusive dealing, resale price maintenance, standard-setting matters, “quick-look” offenses, offenses under the rule of reason, dealer restraints, reverse settlement payments in patent litigation, misuse of MFN clauses, and miscellaneous restraints of trade.

Liability under Section 2 of the Sherman Act: Monopolization, attempted monopolization, and conspiracy to monopolize, as well as various kinds of “anti-competitive conduct” alleged against supposed monopolists, such as misuse of essential facilities, unilateral refusals-to-deal, FRAND abuse, bundled discounts, product bundling, misuse of intellectual property rights, predatory pricing, monopoly leveraging, and other kinds of “predatory conduct.”

Liability under Section 3 of the Clayton Act: Probable market foreclosure accomplished by tying arrangements or exclusive dealing.

Liability under the Robinson-Patman Act: Unlawful price discrimination, as well as loyalty discounts, rebates, concealed price discrimination, and other pricing preferences.

Market Definition, Market Power in Section 1 Cases, and Monopoly Power in Section 2 Cases

Antitrust Standing and Antitrust Injury

Incipient Threats to Competition under Section 7 of the Clayton Act: Challenging or defending mergers and acquisitions that allegedly pose anticompetitive risks; related matters.

Resale Price Maintenance (Vertical Price-Fixing): The confused state of the law in the aftermath of the Leegin case; enforcing Colgate policies and minimum advertised pricing (MAP pricing).

Dealer Restraints

Private Standard-Setting Matters

Misuse of Most-Favored Nation Clauses (MFN clauses)

Antitrust Immunity under State and Federal Law

Sham Litigation and the Noerr-Pennington Doctrine

The International Reach of American Antitrust Law

Antitrust Reporting Requirements under the Hart-Scott-Rodino Act

California Antitrust Issues

Restraints of Trade under California’s Cartwright Act: Forbids the same conduct as Section 1, but for some offenses a more expansive standard is applied; resale price maintenance apparently remains a per se violation.

Predatory Pricing and Price Discrimination under California’s Unfair Practices Act: Imposes a more expansive standard against predatory pricing (a particular kind of anticompetitive practice employed by monopolists and firms that practice primary-line price discrimination); specifically, California law allows firms to prevail on predatory pricing claims that cannot proceed under the restrictive federal standard adopted by the U.S. Supreme Court in the modern era; in particular, there is no obligation under California law to prove “recoupment” (i.e., no obligation to prove that the predatory seller, after acquiring its monopoly by charging low prices, can successfully raise its prices to supracompetitive rates after running its rivals out of the market).

Violations of California’s Unfair Competition Law: Authorizes injunctive relief for antitrust abuses under California’s more expansive, plaintiff-friendly standards, allowing firms to obtain protection that they possibly cannot obtain under federal law; also authorizes restitution of ill-gotten gains and can serve as a basis for class-action litigation.

Related Issues

Patent misuse, patent fraud, collusive settlements of patent litigation, sham enforcement of intellectual property rights, false advertising, trademark offenses, and related matters.

Mr. Markham also has general knowledge of competition policy in the European Union and Canada and clerked for a leading law firm in Montréal, Québec while at law school (Ogilvy, Renault), working as a summer clerk in its competition group. We can readily collaborate with leading firms in foreign jurisdictions in order to help our clients to address international and global antitrust concerns.

MR. MARKHAM’S ARTICLES ON ANTITRUST LAW

AN OVERVIEW OF ANTITRUST LAW (By William Markham, © 2000)

“Antitrust law is the law of competition and is perhaps the least understood law of all. This article provides an overview and explanation of the essential principles of antitrust law.”
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ANTITRUST EXEMPTIONS AND IMMUNITIES (By William Markham, © 2022)

“Over the years, Congress and the federal courts have established various immunities from federal antitrust law, removing from its reach specified commercial activities and even entire lines of commerce.”
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HOW THE CONSUMER-WELFARE STANDARD TRANSFORMED CLASSICAL ANTITRUST LAW (William Markham, © 2021)

“Since the late 1970s, antitrust law in the United States has been transformed out of recognition and rendered largely toothless by consumer-welfare jurisprudence….,”
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ANTITRUST AND FREE MARKETS (BY William Markham, © 2022)

“Some critics of antitrust law treat it as mere governmental overreach and an unwelcome infringement upon the ordinary operations of our free markets. (….) That criticism betrays a fundamental misunderstanding of the very term ‘free markets,’ which refers to markets that are free of any undue restraint, whether public or private.”
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UNLAWFUL PRICE DISCRIMINATION (By William Markham, © 2013)

“In this article I take up the obscure, problematic doctrine of illegal price discrimination, which was codified by the Robinson-Patman Act during the Great Depression, and which the modern, conservative Supreme Court has severely limited.”
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WHY ANTITRUST LAWS MATTER (By William Markham, © 2006)

“The antitrust laws are supposed to promote and protect competition, or, if you will, competitive processes in distinct ‘lines of commerce’ or ‘relevant markets.’ This alone is their proper purpose.

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MR. MARKHAM’S ARTICLES ON TRIAL PROCEDURE AND CONTRACT LAW

MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL (By William Markham, 2011)

“I try in this article simply to set forth a list of simple rules to explain the key points of the law of evidence. I also offer several pointers on organizing evidence in order to present it competently at trial.”
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ANATOMY OF A LAWSUIT (By William Markham, © 2007)

“This article is written for non-lawyers, young litigators, and non-litigator attorneys who wish to understand how a lawsuit works in practice from start to finish.”
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AN OVERVIEW OF CONTRACT LAW (By William Markham, 2002)

“Contract law lies at the heart of our system of laws and serves as the foundation of our entire society. This is not an exaggeration. (….) Our society depends upon free exchange in the marketplace at every level.
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LAW OFFICES OF WILLIAM MARKHAM, P.C.
402 West Broadway, Suite 400
San Diego, CA 92101
Tel. (619) 221-4400
inquiries@markhamlawfirm.com

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