The Competition and Antitrust Laws Prohibit collusion between competitors, such as price-fixing. Prohibit monopolization through mergers. Examine geog
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1 COMPETITION AND THE ANTITRUST LAWS by Paul Stephen Dempsey Director, Institute of Air & Space Law McGill University Copyright 2010 by Paul Stephen Dempsey
2 The Competition and Antitrust Laws Prohibit collusion between competitors, such as price-fixing. Prohibit monopolization through mergers. Examine geographic and product competition. Prohibit monopolization through anticompetitive means, such as predation.
3 US Antitrust Laws Sherman Antitrust Act of 1890 Clayton Act of 1914 Robinson-Patman Act of 1936 Federal Trade Commission Act of 1938 Civil Aeronautics Act of 1938
4 Section 1 of the Sherman Act Prohibits contracts, combinations, and conspiracies in restraint of trade. Per se violations: Price-fixing; territorial allocations; group boycotts; tying arrangements. Airlines seek antitrust immunity to create alliances. NW/KLM granted antitrust immunity in 1993.
5 Section 2 of the Sherman Act Prohibits monopolization and attempts to monopolize Focuses on market power the ability to reduce service and/or raise price to maximize wealth, at the cost of consumer welfare. In 1991, US and EU agreed to coordinate regulatory review on transatlantic mergers, acquisitions, and alliances. Boeing s acquisition of McDonnell- Douglas was reviewed by the EU Commission.
6 Article 81 of EC Treaty Prohibits all agreements between undertakings which may affect trade and which have as their object or effect the prevention, restriction or distortion of competition.... Examples: Price-fixing; Limitation or control of production; Shared markets or sources of supply; Applying dissimilar conditions to equivalent transactions, placing other trading parties at a competitive disadvantage; Making the conclusion of contracts subject to approval by others without commercial justification.
7 Article 82 of EC Treaty Prohibits abuse... of a dominant position.... Examples: Imposing unfair purchase or selling prices; Limiting production to the prejudice of consumers; Applying dissimilar conditions to equivalent transactions to other trading parties, placing them at a competitive disadvantage; Making the conclusion of contracts subject to approval by other parties without commercial justification.
8 Article 87 of the EC Treaty Prohibits State Aid which distorts or threatens... Competition....
9 Section 5 of the Federal Trade Commission Act Prohibits unfair methods of competition. Section of the Federal Aviation Act (formerly Section 411 of the Civil Aeronautics Act of 1938) Prohibits unfair methods of competition.
10 Unlawful Monopolization Predatory pricing requires proof of: 1.Pricing below cost; 2.Dangerous possibility of success; 3.Recoupment of short-term term losses.
11 Legacy Carrier vs. Legacy Carrier: Minneapolis-Cleveland $290 $270 $250 $230 $210 $190 $170 Northwest Continental $150 94/1 94/2 94/3 94/4 95/1 95/2 95/3 95/4 96/1 96/2 96/3 96/4 97/1 97/2 97/3 97/4 98/1 98/2 98/3 98/4 99/1 99/2 Calendar Quarter 3Q95, NW drops fares 4%; then another 4% the following quarter; 1Q96 NW raises fares 30%; thereafter NW s fares were 18% higher than CAL
12 Legacy Carrier vs. Southwest: St. Louis - Detroit $90 $80 $70 average fare $60 $50 $40 $30 NORTHWEST TWA SOUTHWEST $20 90/1 90/3 91/1 91/3 92/1 92/3 93/1 93/3 94/1 94/3 95/1 95/3 96/1 96/3 97/1 97/3 98/1 98/3 99/1 calendar quarter TWA s fares 42% higher than SW
13 Legacy Carrier vs. New Entrant LCC: Atlanta-Newark $250 $230 $210 $190 $170 $150 $130 $110 CONTINENTAL $90 DELTA KIWI $70 91/1 91/2 91/3 91/4 92/1 92/2 92/3 92/4 93/1 93/2 93/3 93/4 94/1 94/2 94/3 94/4 95/1 95/2 95/3 95/4 96/1 96/2 96/3 96/4 97/1 97/2 97/3 97/4 98/1 98/2 98/3 98/4 99/1 99/2 calendar quarter After Kiwi entered, CAL s fares were only 10% higher; DAL s fares were 38% higher
14 Legacy Carrier vs. New Entrant LCC: Dallas-Wichita $130 $120 $110 $100 $90 $80 $70 $60 AMERICAN AIRLINES VANGUARD $50 $40 94/1 94/2 94/3 94/4 95/1 95/2 95/3 95/4 96/1 96/2 96/3 96/4 97/1 97/2 97/3 97/4 98/1 98/2 98/3 98/4 99/1 99/2 calendar quarter AA dropped its fares 100% ; after Vanguard exited, AA raised fares 77%
15 Legacy Carrier vs. New Entrant LCC: Denver-Atlanta $260 $240 $220 $200 $180 $160 $140 $120 DELTA UNITED MARKAIR FRONTIER $100 90/1 90/3 91/1 91/3 92/1 92/3 93/1 93/3 94/1 94/3 95/1 95/3 96/1 96/3 97/1 97/3 98/1 98/3 99/1 calendar quarter UAL dropped fares 38% after MarkAir entered; after it left, UAL raised fares 84%; note DAL
16 Average Fares: Selected Cities Average Fares - Selected Cities MSP DFW ATL SLC MCI One-way Fare Year/Quarter MSP fares are 43% higher than ATL, 68% higher than SAL, 70% higher than KC
17
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