decision in LePage’s[1]) or whether it is analyzed under Section 1 or Section 2 (as illustrated by the competing approaches to exclusive dealing in Dentsply[2] and Microsoft[3]). Moreover, on the merger side, the Supreme Court has not reviewed a Section 7 case for decades and, as Potter Stewart remarked in Von’s Grocery, the only thing settled in Supreme Court merger jurisprudence is that that “the government always wins.”[4]
When it comes to pure Section 5 challenges to conduct in the high-tech sphere, I don’t believe that the legal ingredients for our cause of action should be all that different. Although much has been made about the “trilogy” of Section 5 cases that the Commission last dug into during the 1980s—Boise Cascade, DuPont, and Official Airline Guides[5]—if one reviews the decisions in those cases closely, one must conclude that they simply hold that the Commission should not use Section 5 when it would disturb “settled” Sherman or Clayton Act case law. To my mind, that means a Section 5 case should generally require showing of (1) anticompetitive effects and (2) either an attempted agreement (as in the invitation to collude cases) or incipient or actual monopoly power (as in cases like N-Data and Intel where we challenge unilateral conduct). Beyond that, the contours of any particular Section 5 cause of action should probably be identified on a case by-case basis, not only because that’s what Congress
- ↑ LePage’s Inc. v. 3M Co., 324 F.3d (3d. Cir. 2003) (en banc).
- ↑ United States v. Dentsply Int’l, 399 F.3d 181 (3d. Cir. 2005).
- ↑ United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).
- ↑ United States v. Von’s Grocery Co., 384 U.S. 270, 301 (1966) (Stewart, J., dissenting).
- ↑ See, e.g., Boise Cascade v. FTC, 637 F.2d 573, 581-82 (9th Cir. 1980); Official Airline Guides v. FTC, 630 F.2d 920 (2d Cir. 1980); E.I. duPont de Nemours & Co. v. FTC, 729 F.2d 128 (2d Cir. 1984).
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