To bring an action under Sections 1 or 2 of the Sherman Act or Section 7 of the Clayton Act a plaintiff, whether the Federal Trade Commission (FTC), the Department of Justice or a private party, must demonstrate, among other things, that the defendant’s conduct or the challenged transaction will reduce or harm competition. Indubitably, the plaintiff and defendant retain economic experts to inform the fact-finder why the challenged conduct will or will not harm competition in defined relevant product and geographic markets.
The plaintiff’s expert economist will review information in the record and, summoning his experience and training, postulate a hypothesis, based on economic principles, that utilizes a methodology sufficient to defeat a Daubert motion and concludes that the defendant’s alleged conduct will result in market-wide anticompetitive effects. The defendant then reacts equally and oppositely by retaining its own economic expert to rebut the opinion of the plaintiff’s economist, and to proffer an alternative economic theory suggesting that the defendant’s conduct not only doesn’t harm competition, but, perhaps, is even beneficial to consumer welfare.
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