Exclusionary Business Conduct Under Antitrust Laws

Navigating the Evolving Standards and Enforcement for Refusals to Deal, Predatory Pricing and Other Activities

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, December 18, 2012

Recorded event now available

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Course Materials

This CLE course will provide counsel with a review of recent antitrust regulatory enforcement and case law developments to analyze business practices at risk for being deemed anti-competitive violations of antitrust laws.


Recent regulatory activity demonstrates that the FTC and DOJ Antitrust Division are stepping up investigations and lawsuits on impermissible exclusionary conduct, in which a company can seek gains in market power through conduct that weakens rivals or excludes them from the market.

Regulators can look for exclusionary conduct in many forms: refusals to deal, "standards essential" patent hold-ups, predatory pricing, tying and bundling. Companies with prominent market shares need to be aware of enforcement agencies' scrutiny, such as recent investigations of Google and Samsung.

As companies develop business practices and enter agreements with customers or suppliers and other parties, counsel should analyze deals under recent case law to determine potential liability under Section 2 of the Sherman Act or Section 5 of the FTC Act.

Listen as our panel of experienced antitrust attorneys examines exclusionary conduct under antitrust law, explains business practices that have been identified as exclusionary, and reviews current FTC and DOJ enforcement activities and recent case law. The panel will offer guidance to counsel on whether certain business practice efficiencies are likely to trigger antitrust scrutiny.



  1. Exclusionary conduct that can potentially violate antitrust law
    1. Review of forms: refusal to deal, patent hold-up, predatory pricing, tying, bundling
    2. Sherman Act, Section 2
    3. Federal Trade Commission Act, Section 5
  2. Case law update
    1. Developments following the Supreme Court Verizon v. Trinko decision
    2. ZF Meritor L.L.C. v. Eaton Corp.
    3. American Airlines suit against Sabre, Orbitz and Travelport
    4. Apple private class action monopolization cases
  3. DOJ/FTC enforcement developments
    1. “Standards essential” investigations: Google, Samsung
    2. Refusals to deal: In re Pool Corp.


The panel will review these and other key questions:

  • What kind of company conduct is at risk of being the subject of an antitrust investigation or suit?.
  • How are companies' uses of standards essential patents being investigated by the FTC and DOJ?
  • How have courts analyzed exclusionary standards in the years since the Supreme Court's decision in Verizon v. Trinko?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Tyler A. Baker
Tyler A. Baker

Fenwick & West

He focuses on complex litigation, with an emphasis on antitrust and intellectual property law. He represents plaintiffs...  |  Read More

Glenn B. Manishin
Glenn B. Manishin

Troutman Sanders

He concentrates his complex litigation practice in antitrust, telecommunications and technology policy. He has...  |  Read More

Adam J. Di Vincenzo
Adam J. Di Vincenzo

Gibson Dunn

His practice focuses on government antitrust investigations, the antitrust aspects of mergers and acquisitions, and...  |  Read More

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