Plaintiffs Win a Round in Sixth Circuit Milk Case: No Need to Show Relevant Geographic Market or Antitrust Injury to Avoid Pre-Trial Dismissal

In reversing the decision of the district court, the Sixth Circuit held that the court should have considered the possibility that the fact nature of the restraint was sufficiently clear that a “quick look” analysis would have shown that the conduct had obvious, adverse anticompetitive consequences and that a detailed market analysis was not necessary. Even though the alleged conduct was not illegal per se, the allegations in the complaint were sufficient to shift the burden to the defendant to produce evidence of some of the procompetitive benefits of the alleged conduct.
Second, the circuit court found that the trial court’s exclusion of an expert economist’s testimony in dismissing the monopolization counts in respect to his opinion on geographic market was error.  In reaching his conclusion, the expert relied on the “hypothetical monopolist” construct to assess whether the territory alleged constituted a relevant geographic market.  While the district court ruled this approach was not  that this construct required speculation about a buyer’s likely reaction to a price increase, and was not, therefore, based upon actual evidence — and, hence, was unreliable.  The Sixth Circuit, however, viewed the approach as consistent with Supreme Court authority as well as with the DOJ and FTC merger guidelines for determining a relevant market. While defendants contended that the market was much smaller, the circuit court held that that issue should be left to the jury to decide:In re Southeastern Milk Antitrust Litigation

AAI Event with Susan Crawford, Allen Grunes, Bert Foer and Don Resnikoff discussing telecom competition (November 22, 2013)

The American Antitrust Institute, in cooperation with co-sponsor Antitrust and Consumer Law Section of the District of Columbia Bar, presents Susan Crawford discusses telecom competition and her book Captive Audience with Bert Foer, Allen Grunes, and Don Resnikoff

Event Details:

  • Friday, November 22, 12:15 to 1:15 PM
  • Register by sending an email to
  • Call in information for the teleconference will be e-mailed to you.
  • There is no charge.

About Susan Crawford:
Susan Crawford is a professor at the Benjamin N. Cardozo School of Law, a fellow at the Roosevelt Institute, and a co-director of the Berkman Center. She is the author of Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age, and a contributor to Bloomberg View and Wired. Don Resnikoff’s review of Captive Audience is available here. An excerpt from the review is at the end of this notice.

The American Antitrust Institute, in cooperation with co-sponsor Antitrust and Consumer Law Section of the District of Columbia Bar, presents
Susan Crawford discusses telecom competition and her book Captive
Audience with Bert Foer, Allen Grunes, and Don Resnikoff

About Bert Foer:
Albert A. (“Bert”) Foer is President and Founder of the American Antitrust Institute. His career has included private law practice in Washington, DC); the Federal Senior Executive Service (as Assistant Director and Acting Deputy Director of the Federal Trade Commission’s Bureau of Competition). He has published numerous articles, book chapters, and reviews relating to competition policy.

About Allen Grunes:
Allen Grunes is a member of AAI’s Advisory Board. He is a partner at GeyerGorey LLP, a firm started one year ago by three former DOJ Antitrust Division lawyers. Allen spent more than a decade at the Antitrust Division, where he led many merger and civil nonmerger investigations in radio, television, newspapers, motion pictures, and other industries. He and fellow AAI Advisory Board member Maurice Stucke have coauthored several articles on media and telecom, including “Antitrust and the Marketplace of Ideas” (Antitrust Law Journal), “Antitrust Analysis of the AT&T/T-Mobile Transaction” (Federal Communications Law Journal) and “Why More Antitrust Immunity for the Media is a Bad Idea” (Northwestern Law Review). His practice includes advising clients on mergers and acquisitions, providing counseling on non-merger matters, and representing clients in federal court, before the federal antitrust agencies and before Congress. His extensive experience includes media and entertainment, telecommunications, and the high-tech sector. He was named as a “Washington D.C. Super Lawyer” for 2013. 

About Don Resnikoff:
Don Resnikoff is a member of AAI’s Advisory Board, and the organizer of this program. He is currently in private practice in the District of Columbia. He previously was a Senior Assistant Attorney General for the District of Columbia. Before that he served for more than twenty years as an antitrust litigator with the Antitrust Division, United States Department of Justice. His experience also includes private practice corporate litigation as a partner with a New York City firm, recent Of Counsel experience, and service as an Assistant United States Attorney in New Jersey.

From the Resnikoff Review of “Captive Audience:”
Susan Crawford’s bottom-line observations are straightforward: For internet service customers, there are only a few companies from which to buy. Of those, a small number of large companies provide internet service by a cabled wire or fiber-optic connection. Comcast is the most important. Comcast and other cable companies each dominate large geographic regions with little competition. Each can raise prices for fast internet access without significant constraints.

A small number of large companies provides internet service using wireless radio technology instead of cabled wire or fiber-optic connections. Wireless internet access is dominated by AT&T and Verizon. Crawford explains that wireless internet transmission is in a separate market from wired because
wireless transmission of digital signals is too slow to compete with internet service delivered by wire or fiber-optic cable. The wired and wireless products are complementary, not competitive.

To make matters worse, government approval of the Comcast merger with content provider NBC Universal has reinforced a situation where cable companies that dominate distribution of digital signals also control important content. The consequence is that Comcast, the largest high-speed internet distribution company, is in a position to throttle independent providers of television content such as movies and sports.

Interview with Susan Crawford on Telecom Competition and her book ‘Captive Audience’

Interview with Susan Crawford on Telecom Competition and her book ‘Captive Audience’



Start: November 22, 2013 Friday 12:15 PM
End: November 22, 2013 Friday 1:15 PM

free event, registration is required.Please RSVP to [email protected].

Please note: You are not providing your information to the D.C. Bar, but to an organizer for this program.

Professor Susan Crawford and an expert panel will discuss her book, “Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age.” The book describes an internet service market with Comcast and a handful of other cable companies each dominating large geographic regions for wired service and with AT&T and Verizon dominating wireless service. Dominant cable companies also control important content, so there is potential to throttle independent providers of television content such as movies and sports.



This teleconference is sponsored by the Antitrust and Consumer Law Section, in cosponsorship with the American Antitrust Institute.

**This program is offered in a live teleconference format.

Please note: Teleconference information will be e-mailed to registrants 24 hours prior to the event.


Teleconference Only
Washington DC 20005
Sections Office 202-626-3463
Susan Crawford, Professor, Benjamin N. Cardozo School of Law, Fellow, Roosevelt Institute, co-director, Berkman Center
Bert Foer, President and Founder, American Antitrust Institute
Allen Grunes, Partner, Geyer Gorey LLP, Washington, DC
Don Resnikoff, Attorney, Law Offices of Don Resnikoff, Washington, DC
CLE Credit
**This is a free event, see above for RSVP $0.00

GeyerGorey partner Allen Grunes to speak at conference in Seoul, South Korea, about private antitrust enforcement.

Allen Grunes will speak at a conference on international trends in private antitrust enforcement that is being held in Seoul, South Korea on November 1, 2013.  He will present a paper on the U.S. experience with treble damages as part of a program examining private enforcement in the EU, U.S. and China and recent developments in Korea.  The program is jointly sponsored by the Korea University ICR Law Center, the Korean Competition Law Association, and the SNU Center for Competition Law.  More information may be found on the ICR website.


9/18/2013 Business Week: AMR-US Airways Unions Meet U.S. Official on Merger Suit

9/18/2013 Business Week: AMR-US Airways Unions Meet U.S. Official on Merger Suit

GeyerGorey LLP’s Allen Grunes quoted in Washington Post: “AMR, US Airways Attack U.S. Merger Suit as Bad for Consumers.”

AMR, US Airways Attack U.S. Merger Suit as Bad for Consumers

David McLaughlin and Sara Forden
Sep 11, 2013 11:52 am ET

Sept. 11 (Bloomberg) — American Airlines and US Airways Group Inc. defended their proposed merger against a U.S. antitrust lawsuit, saying the combination would generate more than $500 million a year in benefits to consumers.

The combined airline will create an effective competitor to Delta Air Lines Inc. and United Continental Holdings Inc., the airlines said in filings yesterday in federal court in Washington arguing that the U.S. effort to stop the deal should be denied.

“It is the complaint — by interposing the heavy hand of federal and state regulation — which will lessen competition by precluding the market from creating new and competitive flight options for passengers,” Tempe, Arizona-based US Airways said.

The U.S. Justice Department, joined by seven states and the District of Columbia, are suing American parent AMR Corp. and US Airways to block the merger, arguing the tie-up would reduce competition and hurt consumers. U.S. District Judge Colleen Kollar-Kotelly has scheduled the case to go to trial beginning Nov. 25.

The U.S. and the attorneys general argue the proposed merger, by reducing the number of legacy carriers from four to three, would increase the likelihood of coordinated behavior among the airlines, leading to higher fares and fees and diminished service. American and US Airways can compete effectively on their own, the government has said.

Service Cuts

The main issue in the case is whether the merger would lead to cuts in service and increases in domestic fares, said Allen Grunes, a lawyer with GeyerGorey LLP in Washington who formerly worked in the Justice Department’s antitrust division.

“The American and U.S. Airways answers paint a picture of the merger as some kind of silver bullet that will miraculously transform the two companies into the greatest thing since sliced bread,” he said. “That’s more than a little optimistic, and it’s going to be tough for them to prove it.”

The merger, which would create the world’s largest airline, forms the basis for American’s plan to exit bankruptcy protection and pay creditors. Fort Worth, Texas-based AMR filed for bankruptcy in November 2011 and reached the merger agreement with US Airways in February.

“We believe this merger would result in consumers paying more for airfares and receiving less service,” Gina Talamona, a spokeswoman for the Justice Department’s antitrust division, said in an e-mail. “The department’s lawsuit seeks to maintain competition in the airline industry.”

More Competition

American said in its court filing that the deal with US Airways would create a more competitive airline industry that would give passengers more choices.

The U.S. complaint “concocts an imaginary narrative where airlines tacitly collude and where prices are higher than in the past, but the real facts are just the opposite,” American said.

US Airways said the U.S. complaint improperly focuses on maintaining the number of legacy carriers, “those airlines that, prior to 1978, endured the well-documented failure of federal regulation of routes and fares.” Those carriers are by most relevant measures the least financially successful companies in the industry, US Airways said.

Low-Cost Competition

The U.S. ignores the effect on the airline industry of low- cost carriers including Southwest Airlines Co. and JetBlue Airways Corp., according to the filing. The success of those airlines is the “most meaningful competitive development” in the industry since deregulation, US Airways said.

During the past 12 years, American lost $10.3 billion and US Airways lost $3.4 billion, according to the filing by US Airways. US Airways has been in bankruptcy twice in that period.

“Blocking the merger will not sharpen competition — it will prolong this cycle of crisis to the detriment of passengers, the employees of American and US Airways, and the communities the airlines serve,” US Airways said.

The case is U.S. v. US Airways Group Inc., 13-cv-01236, U.S. District Court, District of Columbia (Washington).

Southwest Seen Overlooked as U.S. Seeks to Block AMR Deal


“If the Justice Department defines Southwest and JetBlue out of the market, they’ve got to have good documentary and economic evidence to support that allegation,” said Grunes, the former Justice Department lawyer. Baer, the U.S. antitrust chief, “would not allow it to be in the complaint otherwise.”

Southwest Seen Overlooked as U.S. Seeks to Block AMR Deal

By Mary Schlangenstein

August 23, 2013 12:01 AM EDT

Law 360: DOJ’s Airline Merger Challenge Recalls AT&T Fight

“If you think since the 1990s, what’s been popular has always been a unilateral effects theory,” said Stucke, who is also of counsel at GeyerGorey LLP. “This is almost entirely a coordinated effects theory, [and] I think it’s very strategically well thought-out, [because the airlines] can’t really now divest a few landings. The way the complaint is described, it’s hard to see any remedies short of a full-blown injunction.”

DOJ’s Airline Merger Challenge Recalls AT&T Fight



“My take is this deal is dead” states Allen Grunes in Bloomberg: “AMR-US Airways Antitrust Suit Seen as Difficult to Settle”

From Bloomberg:

The challenge brought by the U.S. Justice Department can be compared with its lawsuit seeking to block AT&T Inc. (T)’s proposed takeover of T-Mobile USA Inc. in 2011, said Allen Grunes, an antitrust lawyer with GeyerGorey LLP. AT&T eventually dropped its bid for T-Mobile. “My take is that the deal is dead,” Grunes said. “Based on the complaint, this merger doesn’t look like it can be fixed with divestitures or slot sales.”

Read More By Clicking Below:

AMR-US Airways Antitrust Suit Seen as Difficult to Settle


“Upstart Start-Up” GeyerGorey LLP Opens Dallas Office

“Rocketing from two to eleven attorneys in eight months, GeyerGorey LLP sports over 200 years of cross-disciplinary prosecutorial experience involving a host of domestic and international industries where each of its attorneys has worked on internal investigations and high stakes cases for an average of more than 20 years.”

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