An Overlooked, Important Antitrust Statute
California’s Unfair Practices Act is codified at Cal. Bus. & Prof. Code § 17000 et seq. The California courts have not yet given a definitive clarification of the full meaning and reach of this law, which is cast in the language of classical antitrust, enumerates forbidden practices, and is openly directed against monopolists, would-be monopolists, and mere sharp competitors that use any of these practices in their sales agreements or advertising.
Broadly speaking, the practices forbidden by the Unfair Practices Act can be classified as various kinds of predatory and exclusionary pricing that undermine competitive markets or thwart an incipient competitive threat posed by a disruptive innovator or fledgling competitor.
We think that this law is an overlooked resource that antitrust lawyers can use to challenge certain kinds of monopolistic pricing practices that too often get a free pass in federal court — namely, exclusionary and predatory pricing that to all appearances undermines competition in a properly defined relevant market, but nevertheless escapes liability or the least reproach under current federal standards.
The challenge will lie in identifying or isolating offending practices that have a substantial adverse impact on California commerce, but only an incidental or separable impact on interstate or foreign commerce. Otherwise, California’s enforcement of its Unfair Practices Act might be challenged in federal court as a forbidden exercise of the U.S. Congress’s “dormant” powers under the Commerce Clause of the U.S. Constitution.
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."
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."
HOW THE CONSUMER-WELFARE STANDARD TRANSFORMED CLASSICAL ANTITRUST LAW (By 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....,"
ANTITRUST AND FREE MARKETS (BY William Markham, © 2022)
UNLAWFUL PRICE DISCRIMINATION (By William Markham, © 2013)
WHY ANTITRUST LAWS MATTER (By William Markham, © 2006)
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."
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."
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.... Our society depends upon free exchange in the marketplace at every level. Contract law makes this possible."