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On November 1, 2006, David Evans presented testimony before the U.S. Department of Justice and Federal Trade Commission at the Public Hearing on Single-Firm Conduct and Antitrust Law Modernization. This viewpoint offers excerpts from his testimony.
Some commentators have suggested that the recent Independent Ink decision shows that the Supreme Court has backed away from the standard set in Jefferson Parish. But in my view, Justice Stevens was quite careful in saying nothing whatsoever in his decision in Independent Ink that repudiates his decision in Jefferson Parish. There are good vibes though from Independent Ink and I’m optimistic that the Court will eventually conclude that tying is a relic of a by-gone era in antitrust when populist hostility towards business practices prevailed and economics hadn’t yet pointed the way. But the U.S. Department of Justice and the Federal Trade Commission shouldn’t just sit still and wait another five or ten years or whatever for that to happen. So in the interim, I have four recommendations:
- First, the Justice Department should adopt a policy that it will not file claims that companies have committed a per se violation of Section 1 of the Sherman Act as a result of engaging in tying. Now I’m not suggesting that DOJ has been trigger happy. In fact the Department hasn’t filed any Section 1 tying cases in the last five years although I don’t believe it has filed any significan