Speeches and actions by Christine A. Varney, the new assistant attorney general in charge of antitrust for the Department of Justice, signal that the Obama administration intends to reinvigorate government antitrust enforcement. Varney stated, for example, that the antitrust division “will be aggressively pursuing cases where monopolists try to use their dominance in the marketplace to stifle competition and harm consumers.”
Recent U.S. Supreme Court antitrust decisions, however, may impede this strategy. That is because over the last several years, the number of activities deemed by the U.S. Supreme Court anti-competitive under antitrust law has declined. The U.S. Supreme Court’s most recent antitrust decision in Pacific Bell Telephone Co. v. Linkline Communications Inc. exemplifies that fact, as the court eliminated “price squeeze” antitrust claims and reiterated that antitrust claims premised on reduced prices cannot survive unless those prices are below-cost and create a dangerous probability of recoupment. As further examples, the court has made it more difficult to challenge vertical price agreements (Leegin Creative Leather Products Inc. v. PSKS Inc.), has held that a firm with no antitrust duty to deal with its rivals is not required to provide those rivals with a sufficient level of service (Verizon Communications Inc. v. Law Offices of Curtis V. Trinko), has raised the standards for pleading an antitrust conspiracy (Bell Atlantic Corp. v. Twombly), and has held that certain IPO stock underwriting practices are immune from antitrust scrutiny (Credit Suisse Securities v. Billing).
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