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Neal R. Stoll and Shepard Goldfein, partners at Skadden, Arps, Slate, Meagher & Flom, write that recently, the FTC released a series of four working papers, written in response to last year's DOJ report, "Competition and Monopoly: Single Firm Conduct Under Section 2 of the Sherman Act." The main disagreement between the agencies is whether the rule of reason or the disproportionality test should be the standard. Ultimately, it seems they differ in how much they should leave up to the courts. The DOJ hesitates to adopt a standard requiring courts to balance procompetitive benefits against anticompetitive harms. The FTC not only believes that administrators of justice are up to the task of performing such analysis, but also that the rule of reason obviates the need for such balancing in many instances. The real question remains; which application will President Barack Obama choose.
February 17, 2009 at 12:00 AM
1 minute read
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