1



    The 2009 T-Mobile Decision of the European Court of Justice: the Arrival of
                      20121 or Merely...
2




        This article will first discuss the T-Mobile decision. Next, it will discuss comparable
principles of Americ...
3


intent of the parties, the objective of the agreement, and the legal and economic context in
which it takes effect.12
...
4


appreciably competition between them.”17 It then held that it logically follows that, in this case,
“the exchange of i...
5


that event, the Court had to presume that the companies engaged in the exchange of
information acted in accordance wit...
6


        In Todd, the United States Court of Appeals for the Second Circuit addressed the
question of whether the excha...
7


Mobile did not depart from the grain on this point even when compared to American antitrust
jurisprudence.

       It ...
8


there is a temptation for each member to cheat on the others and charge lower prices in order
to steal customers.49

 ...
9


themselves, leading to a convergence of terms over time, or that telecom companies would
independently alter their com...
10


        In the first instance, a far more difficult question would have been presented under
American law, as well as...
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ABA Newsletter T Mobile Article 1

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This is a copy of an article comparing EU and U.S. law on information sharing in the antitrust context. It was just published in the Spring 2010 ABA Newsletter of the Trade Association Committee, entitled Information Sharing.

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ABA Newsletter T Mobile Article 1

  1. 1. 1 The 2009 T-Mobile Decision of the European Court of Justice: the Arrival of 20121 or Merely Par for the Course? Emilio Varanini* *Vice-Chair, Trade, Sports, and Professional Associations Committee, American Bar Association, Antitrust Section; Chair, International Committee, National Association of Attorneys General, Antitrust Task Force; Deputy Attorney General, California Attorney General’s Office, San Francisco, California. Emilio Varanini is also Chair of the multistate litigating group in the price-fixing case State of California et. al. v. Infineon Technologies et. al. C 06- 4333 PJH. Some of the research used for this article was taken from the same research used by the author of this article to co-author Chapter 2 of the treatise California Antitrust & Unfair Competition Law. See Antitrust and Unfair Competition Section, The State Bar of California, CALIFORNIA AND UNFAIR COMPETITION LAW, Ch. 2 (Matthew Bender & Co., 2009). The views expressed herein are those of the author only and should not be attributed to the California Attorney General’s Office, to the National Association of Attorneys General, or to the American Bar Association. The June 2009 decision of the European Court of Justice in T-Mobile Netherlands BV v. Raad van baastur van der Nederlands Mededingingautoreit2 on information sharing has been depicted as “being very different from American law” and having “broad implications for any contact between competitors and for the exchange of information in trade associations.”3 Alarm is expressed as to T-Mobile’s holding: a single meeting of five telecommunications companies at which they discussed the reduction of commissions paid to mobile telephone dealers and then exchanged information on those commissions could lead to liability without having to show an actual anti-competitive effect on the market.4 What is more startling is the amazement expressed over this decision: this decision is well within the ambit of comparable American antitrust principles which would view a single meeting under the circumstances of the T-Mobile case as giving rise to per se liability for such information sharing.5 Far removed from the less avoidable circumstances of “shop talk” - the occasional exchange of competitively sensitive information among low-level employees belonging to different companies6 - one would expect that trade associations would avoid an exchange of comparatively sensitive competitive information under circumstances similar to the T-Mobile case. Consequently, T- Mobile is nothing more than a 21st century reaffirmation of the point that the baseline principles of antitrust law continue to be applicable no matter the swift changes in industries and technologies that we have all experienced.7 1 Supposedly, according to various interpretations of the Mayan Calendar, 2012 corresponds to the year of the apocalypse. 2 Case C-8/08, T-Mobile Netherlands BV v. Raad van baastur van der Nederlands Mededingingautoreit, 2009 E.C.R. ___ [2009], accessed at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0008:EN:HTML <Mar. 25, 2010>. 3 Julius Melnitzer, Conspiracy Theory, INSIDER COUNSEL, November 2009, at 40 (hereinafter “Meltzner”). 4 See id. 5 See, e.g., United States v. United States Gypsum Co., 438 U.S. 422, 457 (1978); United States v. Container Corp., 393 U.S. 333, 334-35 (1969); In re Petroleum Prods. Antitrust Litig., 906 F.2d 432 (9th Cir. 1990); Todd v. Exxon Corp., 275 F.3d 191, 211-12 (2d Cir. 2001). 6 See In re Baby Food Antitrust Litig., 166 F.3d 112, 118-19 (3rd Cir. 1999). 7 For general statements of the principle that traditional antitrust principles do not need to be changed in the so- st called “New Economy” era involving the Internet, see FTC, Entering the 21 Century: Competition Policy in the
  2. 2. 2 This article will first discuss the T-Mobile decision. Next, it will discuss comparable principles of American law that are analogous to the reasoning and holding of the T-Mobile decision. Finally, this article will suggest how trade associations can avoid the circumstances that gave rise to the T-Mobile decision – whether those associations are meeting in Paris, France or San Francisco, California. T-Mobile Decision of the European Court of Justice Five Dutch telecom companies controlled the entire Dutch telecommunications market. They met on June 12, 2001 to collectively discuss the need to reduce the compensation they were paying dealers when dealers signed up new customers to contracts for mobile phone services. As part of that discussion, they exchanged non-public information as to the compensation that each of them were paying to their dealers.8 The Netherlands Competition Authority found such a practice to violate Article 81(1) of the Treaty of Rome,9 prohibiting “concerted practices” that have an “object or effect” of restricting competition. It imposed fines amounting to €88 million on these five companies.10 When the companies appealed that decision to the Dutch Appellate Court, the Dutch Appellate Court referred certain questions of law to the European Court of Justice – the High Court of the European Union charged with interpreting questions of European Community Law. Those questions of law included the following issues: what criteria are to be applied to determine if an agreement to exchange information has an anti-competitive objective; whether a single meeting can be enough to infer that the participants acted in the market in accordance with their agreement; and whether the Netherlands Competition Authority should have proved an effect on the market.11 Addressing first the issue of whether an agreement must have an anti-competitive effect to constitute a prohibited “concerted practice” under Article 81(1), the European Court of Justice answered this question in negative. The T-Mobile Court started off with the premise that a “concerted practice” under Article 81(1) is one in which companies have “knowingly substituted” “practical cooperation” for the “risks of competition.” To determine whether an agreement is just such a “concerted practice,” the court reasoned that one must look to the World of B2B Electronic Marketplaces (2000); Charles Rule and Thomas Barnett, Defining the Role of Antitrust in the High Technology Revolution, 9 GEO. MASON L. REV. 589, 589 (Spring 2001). 8 T-Mobile, supra, ¶¶10-13; Melnitzer, supra, at 40. 9 Pursuant to the Treaty of Lisbon, this treaty provision is now Article 101 of the Treaty of the Functioning of the European Union. For ease of convenience, this article will continue to refer to this provision as Article 81(1) of the Treaty of Rome. 10 T-Mobile, supra, ¶¶10-13; Melnitzer, supra, at 40. 11 Id. ¶¶17-22.
  3. 3. 3 intent of the parties, the objective of the agreement, and the legal and economic context in which it takes effect.12 Regarding when an agreement can be considered to have an anti-competitive objective, the T-Mobile Court observed that an agreement has such an objective when it is “apparent” that the agreement’s objective is to “prevent, restrict, or distort competition within the common market.”13 The Court helpfully elaborated on this latter point in its comment that “certain forms of collusions between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition.”14 This holding did not mean that the extent of any anti-competitive effect was not germane. Rather, the extent of an anti-competitive effect pertained only to the amount of any fine and to the assessment of any claim for damages.15 Addressing next the criteria for determining when an agreement on information sharing could be deemed to have an anti-competitive objective, the Court noted that it started from the premise that each firm is supposed to make its own independent decisions in the market. This precluded competitors from contacting each other to influence each other conduct in the market or to inform each other of their actions or plans in the market when the object or effect of informing each other is to restrict, prevent, or distort competition in the market. In turn, to determine if companies were speaking to each other with such an objective in mind, the Court indicated that European competition authorities could look to the nature of the products or services being offered, the size and number of companies involved in the market, and the volume of the market involved.16 Applying those criteria, the T-Mobile Court analogized the instant market – the cell phone subscription market in the Netherlands with no prospect of new entry – to a highly oligopolistic market. It noted that it had previously held that, in highly oligopolistic markets, the exchange of information comparable to that exchanged in this case “ was such as to enable traders to know the market positions and strategies of their competitors and thus to impair 12 Id. ¶¶26-28. 13 Id. ¶29. 14 Id. ¶29. Later in its opinion, the T-Mobile Court agrees with the Advocate General that an agreement can have anti-competitive object when it has “the potential to have a negative impact on competition.” Id. ¶31. However, that statement must be read in the context of the rest of the opinion. The opinion not only includes the above language quoted in the text of this article but also includes additional language that carefully separates the two ways in which the Commission or Member State National Competition Authorities can prove an illegal “concerted practice” – by showing an anti-competitive objective or an anti-competitive effect. The T-Mobile Court points out how demonstrating an anti-competitive effect requires a more rigorous analysis into the actual effects of the agreement to determine if competition has been in fact prevented, restricted, or distorted to an appreciable extent in the common market. Id. ¶28. If the T-Mobile Court’s agreement with the Advocate General’s statement were to be taken literally, it would appear to nullify much of the rest of the opinion as it is difficult to imagine literally an agreement that has no potential, however miniscule, to have a negative impact on competition. 15 Id. ¶31. 16 Id. ¶¶32-33.
  4. 4. 4 appreciably competition between them.”17 It then held that it logically follows that, in this case, “the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question.”18 The Netherlands Competition Authority had found that, insofar as the postpaid subscription cell phone market was concerned, “remuneration paid to dealers is evidently a decisive factor in fixing the price paid by the end users.”19 Thus, the T-Mobile Court found that the information exchange in that case could have an anti-competitive objective and so be illegal under the Treaty of Rome.20 One of the cell phone companies argued that, in essence, they could acquire the same information from the market that they exchanged with each other simply by the expedient of monitoring the market. While the Court carefully emphasized that it was not banning parallel conduct in oligopolistic markets, it noted that the Netherlands Competition Authority had found that the information exchange in this case was capable of reducing the uncertainty that would have otherwise prevailed in the market as to pricing, e.g., the timing, extent, and details of changes to standard dealer remuneration.21 The T-Mobile Court then turned its attention to the question of whether the Netherlands Competition Authority was required to show that the companies used the information they gathered actually to change in some way their remuneration of their own dealers. The Court held that it must be presumed in these circumstances that the companies did use the information they exchanged because such a presumption had been laid down by prior case law, and the Netherlands Competition Authority was required to apply that case law.22 Finally, the Court addressed the question of whether such a presumption could operate where there was only a single meeting. The Court found that the presumption is more compelling where companies meet on a regular basis over a long period of time and exchange information.23 Yet, it refused to rule out the application of the presumption to a single meeting “depend[ing] upon both subject matter of [the meeting] and the particular market conditions.”24 The Court agreed with the Advocate General and the Netherlands Competition Authority that if companies want to discuss only “one parameter of competition” which they can affect on a “one-off basis,” then a single meeting to exchange information would suffice. In 17 Id. ¶¶34 (citing Case C-7/95, P. Deere v. Commission, 1998 E.C.R. I-2111 (1998), ¶88 et. seq.). 18 Id. ¶ 35. 19 Id. ¶37. 20 Id. ¶¶37-39, 43. 21 Id. ¶¶37, 41. 22 Id. ¶53. 23 Id. ¶58. 24 Id. ¶60.
  5. 5. 5 that event, the Court had to presume that the companies engaged in the exchange of information acted in accordance with the information so exchanged.25 Comparison with American Law Leaving aside the issue of T-Mobile’s involving only a single meeting, it is more than arguable that the exchange of information under circumstances similar to T-Mobile would be a per se violation of the antitrust laws in the United States. Illustrative of this point are two cases, United States v. Container Corp.26 and In re Petroleum Products Antitrust Litig.27 In Container Corp., the United States Supreme Court found an exchange of pricing and specific sales information to violate the antitrust laws. The Court focused on the fact that, given the nature of the corrugated container industry, competitors could use the information exchanged to keep prices within a narrow band even though the industry itself was characterized by excess capacity and downward-trending prices.28 Accordingly, the Court viewed this information exchange as an informal or casual agreement to stabilize prices.29 In Petroleum Products, the United States Court of Appeals for the Ninth Circuit found that the information exchange of pricing and supply information in the oil and gas market for the West Coast constituted a per se conspiracy to engage in price fixing. On the supply side, the defendants, who compete in an oligopolistic market, exchanged information on actual current production, and on projections of future supply and demand.30 On the pricing side, defendants originally exchanged pricing information as to dealer compensation and then, post-Container Corp., started making public announcements as to dealer compensation – announcements having no legitimate purpose aside from the coordination of prices.31 Moreover, even if it could be argued that per se liability would not be appropriate for conduct similar to that present in T-Mobile, it nonetheless stands to reason that such a practice – if carried out under market circumstances similar to T-Mobile - would be condemned under the rule of reason as an unreasonable restraint on trade. Illustrative of this point is Todd v. Exxon Corp.32 25 Id. ¶60-61, 62. It should be noted that the use of the term “presumption” is no accident. The presumptions set out in the T-Mobile opinion are rebuttable. See, e.g., id. ¶¶53, 61. 26 393 U.S. 333 (1969). 27 906 F.2d 432 (9th Cir. 1990). 28 Id. at 336-37. 29 Id. at 337-38 (stating that “[p]rice is too critical, too sensitive a control to allow it to be used in even an informal manner to restrain competition.”). In his concurring opinion, Justice Fortas stated that he did not understand the majority opinion to hold that the “mere exchange of current price information is so akin to price-fixing by combination or conspiracy as to deserve the per se classification. Id. at 339 (Fortas, J., concurring). But, Justice Fortas agreed that the information exchange at issue was an unreasonable restraint on trade. Id. 30 906 F.2d at 460-63. 31 Id. at 447-48. 32 275 F.3d 191 (2d Cir. 2001).
  6. 6. 6 In Todd, the United States Court of Appeals for the Second Circuit addressed the question of whether the exchange of salary information among competitors constituted an antitrust violation. The Second Circuit answered this question in the affirmative, noting that the market was as concentrated as the one in Container Corp.33 and involved fungible products with inelastic demand,34 that the information exchanged involved both current and future wage information,35 and that the information exchanged was not made publicly-available such that employees could benefit from it as well.36 Speaking more generally, federal precedent has focused on the presence of certain market factors and the type of information exchanged in separating sheep from goats. In the first instance, federal courts are more likely to condemn information exchanges as being unreasonable under the rule of reason when the market conditions involve fungible commodities,37 inelastic demand,38 or, as in T-Mobile, highly concentrated markets with high barriers to entry.39 Furthermore, federal courts are more likely to condemn information exchanges where they involve current or future information as to pricing or supply40 and involve confidential, non-public information.41 Indeed, as in T-Mobile, it is worth pointing out that these cases did not rest on the need to demonstrate an actual anti-competitive effect.42 Thus, when analyzed more closely, T- 33 Id. at 208-09. 34 Id. at 209. 35 Id. at 211-13. 36 See id. at 213 (stating that “dissemination of the [salary] information to employees could have helped mitigate any anticompetitive effects of the salary exchange and possibly enhanced market efficiency by making employees more sensitive to salary increases”). 37 Todd, 275 F.3d at 209 (analyzing cases); see also Container Corp., 393 U.S. at 337. 38 Container Corp., 339 U.S. at 337; Todd, 275 F.3d at 211; Flav-O-Rich, Inc. v. North Carolina Milk Comm’n, 593 F. Supp. 13, 15 (E.D.N.C. 1983). 39 United States v. United States Gypsum Co., 438 U.S. 422, 457 (1978) (“Especially in oligopolistic industries . . . the exchange of price information among competitors carries with it the added potential for the development of concerted price-fixing arrangements.”); Todd, 275 F.3d at 208-09. 40 Gypsum, 438 U.S. at 441 n. 16; Todd, 275 F.3d at 211-12. 41 Todd, 275 F.3d at 213; cf. Petroleum Prods., 906 F.2d at 447-48 & n. 14 (rejecting defendant oil companies’ “circular argument” that their publication of wholesale pricing information prevented an inference of conspiracy because it was “‘publicly available’” and holding that there was not a procompetitive effect because franchise dealers were unable to use the information being exchanged, but stating that its “conclusion would necessarily be different” if retail prices were being published since “permitting an inference of conspiracy from such evidence would make it more difficult for retail consumers to get the information they need to make efficient market decisions.”). 42 See Gypsum, 438 U.S. at 441 n. 16 (“Exchanges of current price information . . . have the greatest potential for generating anti-competitive effects and although not per se unlawful have been consistently held to violate the Sherman Act.”). Speaking more generally, the information exchange cases seem to employ a form of quick look analysis in that once an information exchange on its face appears to be of the type that is commonly regarded as being anti-competitive, the inquiry shifts to whether any pro-competitive justifications exist. The United States Supreme Court has endorsed the use of quick look analysis in a rule of reason context. See California Dental Ass’n v. FTC, 526 U.S. 756, 770 (1999); FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 459-60 (1986); NCAA v. Bd. of Regents, 468 U.S. 85, 104-10 (1984).
  7. 7. 7 Mobile did not depart from the grain on this point even when compared to American antitrust jurisprudence. It is beyond cavil that these American cases do not involve a “single meeting” as did T- Mobile. Indeed, analogous to T-Mobile’s reference to the strength of the presumption regarding information exchanges resting on the number of meetings, Todd itself notes that the frequency of meetings to exchange prices “may increase the likelihood of uniformity of conduct.”43 However, there is no “mulligan” exception in American law to ascribing antitrust liability for illegal conduct.44 Nor can the circumstances underlying T-Mobile be analogized to the “casual shop talk” cases, involving haphazard exchanges of competitively sensitive information between low-level employees without pricing authority, in which American courts have found no antitrust liability even though that information may have been passed up the chain to management.45 Thus, insofar as liability is concerned,46 the key issue is not how many meetings took place, but what occurred and what were the conditions of the market involved. The T-Mobile opinion notes that information exchanges between competitors violate Article 81(1) if, in an oligopolistic setting, they “remove or reduce the degree of uncertainty as to the market in question.” On a superficial read, this statement could strike readers as being incredibly expansive: after all, read literally, what information about your competitors that you learn would not reduce uncertainty in the market to some extent? But, on a closer read, this statement is not nearly as revolutionary as a literalistic reading would indicate when compared to American antitrust law. Information exchanges function by reducing uncertainty as to prices or output. 47 Reducing uncertainty in an oligopolistic setting48 is particularly important if members of that oligopoly wish to coordinate supply or pricing because, in the absence of the ability to make accurate predictions about each other’s behavior (or an agreement subject to verification), 43 Todd, 275 F.3d at 213. 44 Cf. Socony-Vacuum, 310 U.S. at 221 (“Any combination which tampers with price structures is engaged in an unlawful activity” even if its members were in no position to control the market); id. at 224 (even a combination does not control a substantial part of the commodity may be liable); 6 Philip Areeda & Herbert Hovenkamp, ANTITRUST LAW ¶1419e2 at 131 (2d ed. 2003) (discussing solicitations to engage in price-fixing). 45 See, e.g., In re Baby Foods Antitrust Litig., 166 F.3d at 118-20, 124-127 (noting that much the information gathered in this haphazard fashion did not even relate to pricing); id. at 128 (noting that plaintiffs could not show that the prices of the defendants actually moved in parallel fashion). 46 T-Mobile correctly points out that the frequency of meetings may pertain to the assessment of damages and civil penalties. Cf., e.g., Cal. Bus. & Prof. Code §17206 (enumerating factors that can bear on the amount of civil penalties assessed for unfair competition violations in California). 47 E.g., Richard Posner, ANTITRUST LAW: AN ECONOMIC PERSPECTIVE, at 55-66, 146-47 (1976). 48 Speaking generally, an oligopoly is a market structure in which an industry or a market is dominated by a few firms. See generally, Wikipedia, accessed at http://en.wikipedia.org/wiki/oligopoly <Mar. 26, 2010>.
  8. 8. 8 there is a temptation for each member to cheat on the others and charge lower prices in order to steal customers.49 In this regard, American antitrust law already takes an expansive view of the components that can affect pricing, including output,50 list prices (even where competitors can freely depart from those list prices),51 credit,52 use by competitors of a specific method for quoting prices, 53 banning discounts and requiring minimum mark-ups, 54 and competitors’ publicly posting formerly confidential pricing information for the sole purpose of notifying each other of discounts and enabling price matching.55 And, as discussed above, American antitrust law, like the T-Mobile decision, focuses on the market circumstances in which the information exchange occurred, as well as the nature of the information exchanged, to determine if the information exchanged would truly reduce market uncertainty as to pricing to an appreciable extent.56 However, what if the Dutch telecommunication companies had never held this meeting but instead had independently posted their dealer compensation practices online for pro- competitive reasons and then over time tacitly followed each other dealer compensation practices without any coordination or communication with each other? (One could imagine in such a scenario that dealers would refer to such published data to ask for better terms for 49 See, e.g., Blomkest Fertilizer v. Potash Corp., 203 F.3d 1028, 1042 (8th Cir. 2000) (dissenting op. of Gibson, J.); JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775, 777 (7th Cir. 1999); Posner, ANTITRUST LAW, supra, at 53; Wikipedia, supra. 50 E.g., Westinghouse Elec. Co. v. Gulf Oil Co., 588 F.2d 221, 226 (7th Cir. 1978); see also 12 Herbert Hovenkamp, ANTITRUST LAW ¶2006, at 76-77, 79 (2d ed. 2005) (noting that output limitation agreements may be easier to police than price-fixing and that they lead to price increases); Joe Bain, INDUSTRIAL ORGANIZATION, at 304 & n. 1 (2d ed. 1968). Agreements that cover an aspect of output would also be covered. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 220 (1940) (fact that there was still some competition on spot market sales of gas where agreement of competitors removed distressed gasoline did not excuse the agreement). 51 Plymouth Dealers’ Ass’n v. United States, 279 F.2d 128, 132-33 (9th Cir. 1960). 52 Catalano v. Target Sales, Inc., 446 U.S. 643, 645-46 (1980); see 12 Herbert Hovenkamp, ANTITRUST LAW ¶2022a, at 173 (“A credit term is a price term, and the granting of extended credit is financially identical to a price cut.”). 53 See FTC v. Cement Inst., 333 U.S. 683, 690-93 (1948). 54 See Costco Wholesale Co. v. Maleng, 522 F.3d 874, 897 n. 19 (9th Cir. 2008). 55 In re Petroleum Prods., 906 F.2d at 449-450; see Costco, 522 F.3d at 895-96. 56 European law does not necessarily view the use of the term “reduction in uncertainty” in more expansive terms than American law insofar as information exchanges are concerned. In the case of Asnef-Equifax, the European Court of Justice upheld the use by Spanish banks of a single database that contained shared data on the solvency of borrowers even though it did reduce uncertainty as to default risk. C 238/05 Asnef-Equifax [2006] E.C.R. I-11125 (2006), ¶55, accessed at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0238:EN:HTML <Mar. 26, 2010> (noting that the shared database reduced the risk that each bank faced of default but in so doing improved the overall supply of credit). In doing so, the European Court of Justice made the following pertinent observation: “…The compatibility of an information exchange system […] with the Community competition rules cannot be assessed in the abstract. It depends on the economic conditions on the relevant markets and on the specific characteristics of the system concerned, such as, in particular, its purpose and the conditions of access to it and participation in it, as well as the type of information exchanged — be that, for example, public or confidential, aggregated or detailed, historical or current — the periodicity of such information and its importance for the fixing of prices, volumes or conditions of service.” Id. ¶54.
  9. 9. 9 themselves, leading to a convergence of terms over time, or that telecom companies would independently alter their compensation policies to reflect those of the competition over time so as to not lose valued dealers.) The T-Mobile decision carefully carves out such independent parallel conduct – even in an oligopoly setting –as a separate matter as long as there are no additional factors at work. So, too, does American law. Under American law, parallel conduct in an oligopolistic setting is actionable under federal and state antitrust laws only if (1) each competitor acted in parallel fashion beyond parallel pricing; (2) awareness of the actions of other competitors is shown to be a factor in the actions of each competitor; and (3) each competitor acted against its self-interest57 or there were other plus factors. 58 Those plus factors include inelastic demand, high market concentration, lack of product differentiation, and evidence implying a traditional conspiracy.59 Under American antitrust law, while it bears emphasizing that, even in an oligopolistic setting, parallel pricing is not enough by itself,60 one particular plus factor can be information exchanges among competitors of the type discussed in this article.61 Thus, whether a trade association, or a group of competitors, is meeting in San Francisco, California or Paris, France, it would be well-advised to consider the lessons of T-Mobile in deciding whether and how it may sponsor the exchange of competitively-sensitive information among its members. Implications of T-Mobile On one level, T-Mobile truly may be a one-off. In American as well as European jurisdictions, it is inherently problematic for members of an oligopoly to host a joint meeting to discuss the need to lower dealer compensation (an apparently significant non-public aspect of price competitions among the Dutch telecommunication companies), and then privately exchange the information necessary to make that coordination happen. For that reason, it is hard to imagine a repeat of the T-Mobile scenario in America or Europe if not also elsewhere. 57 Acting against its economic self-interest means “what the defendant’s self-interest would be assuming it acted alone.” City of Tuscaloosa v. Hacross Chems., Inc., 158 F.3d 548, 570 n. 33 (11th Cir. 1998). 58 City of Tuscaloosa, 158 F.3d at 570-71. 59 E.g., Blomkest, 203 F.3d at 1032-33, 1045 (majority op.); id., at 1048-50 (dissenting op.); Eddins v. Redstone, 134 Cal.App.4th 290, 305 n.11 (2005). 60 E.g., In re Citric Acid Litig., 191 F.3d at 1102; City of Tuscaloosa, 158 F.3d at 570-71; see also Bell Atlantic v. Twombly, 550 U.S. 544, 553 (2007) (“Even ‘conscious parallelism,’ a common reaction of ‘firms in a concentrated market [that] recognize their shared economic interests and their interdependence with respect to price and output decisions’ is not ‘in and of itself unlawful.’”). 61 See Blomkest, 203 F.3d at 1046 (dissenting op.); In re Citric Acid Litig., 191 F.3d at 1103; In re Petroleum Prods., 906 F.2d at 441-60 (reversing grant of summary judgment for defendants, stating that “[a]dditional proof beyond mere parallel pricing usually is required,” but a jury could conclude that the challenged conduct – e.g., press releases announcing wholesale gasoline price changes that were difficult to discern from observing retail prices in the market, posting the price changes in headquarter lobbies, and a prior history of direct exchanges of price information – did not serve a legitimate business purpose but instead was to facilitate price coordination and a “tacit agreement.”); 6 Philip Areeda & Herbert Hovenkamp, ANTITRUST LAW, ¶1434b (2002); Posner, ANTITRUST LAW, supra, at 146.
  10. 10. 10 In the first instance, a far more difficult question would have been presented under American law, as well as European law, if the Dutch telecommunications companies had chosen instead first to publicize their dealer compensation structures on the Internet for ostensibly pro-competitive reasons and then to follow each other’s practices. Moreover, T-Mobile does not change European or American antitrust jurisprudence to the effect that the exchange of historical, aggregated cost, supply, or pricing information between competitors – especially in non-oligopolistic markets – is generally viewed as being benign and pro-competitive absent evidence that it led to price uniformity or increased prices for consumers.62 On another level, however, T-Mobile illustrates how an ounce of prevention could be worth a pound of cure. Trade associations or other joint business meetings should not be sponsoring spontaneous exchanges of information regarding components of pricing, especially exchanges that are non-public, in the context of complaints about price wars, declining prices, the present depression, or overcapacity. If an exchange of such competitively sensitive information is to be done at all, it should be carried out as part of a measured process in which the goals of such an exchange, the nature of the information to be shared, the process by which the information will be collected and shared, and the effects of such information sharing (including the nature of the market in which the information sharing would occur) would all be carefully considered.63 In the last analysis, T-Mobile is not, contrary to the implication of a recent article,64 a prelude to an apocalyptic 2012 for businesses which meet with their competitors or participate in trade association meetings and exchange competitively sensitive information. Rather, it is far more par for the course on the side of the Atlantic as on the European side. Trade associations (or joint business meetings) should, all things being equal and in the normal course of business, be able to avoid falling within its scope. 62 See Maple Flooring Ass’n v. United States, 268 U.S. 563, 566-68, 572-73 (1925); see also Container Corp., 393 U.S. at 334 (finding anticompetitive effect in part because the “information concern[ed] specific sales to identified customers, not a statistical report on the average cost to all members”); Wilcox v. First Interstate Bank, 815 F.2d th 522, 526 (9 Cir. 1987) (finding an exchange of information on prime interest rates to not violate the Sherman Act because inter alia such information “is more indicative of an average cost.”); see also Asnef-Equifax, supra, ¶54. 63 Cf. Asnef-Equifax, supra, ¶¶55-62 (European Court of Justice approved shared information database of lenders on creditworthiness of borrowers where database improved supply of credit, involved banks competing in a fragmented market, did not reveal the market position or commercial strategies of the individual banks, was accessible to all competitors in market, and did not prevent banks from competing independently with each other). 64 Melnitzer, supra, at 40, 43.

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