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How Do (and Should) Competition Authorities Treat a Dominant Firm's Deception?

55 Pages Posted: 27 Apr 2009 Last revised: 22 Feb 2012

Maurice E. Stucke

University of Tennessee College of Law; The Konkurrenz Group

Date Written: April 26, 2009

Abstract

This Article discusses deception and its potential anticompetitive effects. Since deception lacks any redeeming ethical, moral, or economic justifications, and trust in the marketplace is paramount, multiple laws seek to deter and punish deception. Although the federal antitrust laws seek to deter acts of unfair competition, which historically included a competitor’s deception, some federal courts, recently have erected hurdles for antitrust plaintiffs injured by a monopolist’s deception. Such hurdles are contrary to the Sherman Act's legislative aim, the common law antecedents of the Sherman Act, and other congressional policies. Moreover, the courts’ legal standards for evaluating a monopolist’s deception involving advertising and product disparagement, vaporware, standard-setting organizations, and other deceptive conduct differ. This Article proposes a “quick-look” legal standard for evaluating a monopolist’s alleged deception. It addresses how the standard promotes several rule-of-law principles and responds to several concerns about using the antitrust laws to combat deception.

Keywords: Sherman Act, Antitrust, Competition Policy, Dominant Firm, Monopoly, Deception, Fraud, Section 2

JEL Classification: K21, L41, L12, K13

Suggested Citation

Stucke, Maurice E., How Do (and Should) Competition Authorities Treat a Dominant Firm's Deception? (April 26, 2009). Southern Methodist University Law Review, Vol. 63, p. 1069, 2010; University of Tennessee Legal Studies Research Paper No. 57. Available at SSRN: https://ssrn.com/abstract=1395076

Maurice E. Stucke (Contact Author)

University of Tennessee College of Law ( email )

1505 W. Cumberland Ave.
Knoxville, TN 37996
United States
865-974-9816 (Phone)

HOME PAGE: http://law.utk.edu/people/maurice-stucke/

The Konkurrenz Group ( email )

5335 Wisconsin Ave., NW
Suite 440
Washington, DC 20015
United States

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