Robbin' Hood

CPI Antitrust Chronicle September 2020

NYU Law and Economics Research Paper No. 20-45

12 Pages Posted: 6 Nov 2020 Last revised: 16 Dec 2020

See all articles by Harry First

Harry First

New York University School of Law

Date Written: September 22, 2020

Abstract

Is it an antitrust offense to sell face masks at a high price in the midst of a pandemic?

In this essay I address this question by examining two recent decisions in South Africa that found the high prices for face masks charged by two retailers were excessive under South Africa competition law, even though neither firm was shown to be dominant by traditional methods. In addition to discussing the two cases, I argue that South Africa’s effort to use competition law to prevent this kind of price increase has important lessons for antitrust enforcement elsewhere, including the United States. Specifically, the two cases remind us of the importance of price in antitrust analysis; the need to pay attention to justice in antitrust analysis; our over-willingness to rely on market corrections rather than acknowledging market failures; and our need to change our culture of antitrust enforcement. It may be that the “supreme evil” of antitrust is not collusion, but a failure to pay attention to how antitrust can advance justice.

Keywords: Antitrust, monopoly, Section 2, excessive pricing, abuse of dominance, exploitation, price gouging, consumer welfare, South Africa

JEL Classification: K21, L12, L40, L41

Suggested Citation

First, Harry, Robbin' Hood (September 22, 2020). CPI Antitrust Chronicle September 2020, NYU Law and Economics Research Paper No. 20-45, Available at SSRN: https://ssrn.com/abstract=3724628

Harry First (Contact Author)

New York University School of Law ( email )

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