Anticompetitive Effects. In support of its claim of anticompetitive effects caused by Xxxxxx’s RPM, PSKS alleged a few points, which were all rejected by the Fifth Circuit in the end. One of them was the high prices of Brighton products caused by the RPM. The court pointed out the deficiency of the claim in light of basic laws of economics, stating that an artificial price hike by Xxxxxx would merely cause it to lose sales to its competitors in the absence of market power. Another point related to a limitation of intrabrand competition among retailers. According to PSKS’s allegation, Xxxxxx’s RPM policy deprived consumers of“free and open competition in the purchase of Brighton-brand product.”Regarding the argument, the Fifth Circuit pointed out the importance of interbrand competition, which forced Brighton retailers to offer a combination of price and service to attract consumers away from other competing brands’products.220） The court also cited Leegin, which stated that robust intrabrand competition on service could exist even in the absence of price competition, and that retailers could seek to attract customers with better service, more knowledgeable staff, more appealing stores, and other non-price-oriented strategies.221） After holding that the Leegin’s termination of PSKS as a retailer should not be viewed as an anticompetitive effect in light of Colgate,222）the Fifth Circuit found that PSKS had never alleged any relevant factors, especially those suggested in Leegin, that would indicate a plausible anticompetitive effect. In Leegin, the Supreme Court held that a dominant retailer and a retailer cartel could force a manufacturer to adopt RPM that it would not otherwise, and cause anticompetitive effects in the relevant market, in addition to a scenario where a manufacturer with market power could bring restriction on interbrand competition.223）Moreover, the Supreme Court suggested anticompetitive concerns if many competing manufacturers adopted RPMs broadly in the relevant market. The Fifth Circuit on remand held, as noted above, that none of those anticompetitive concerns were alleged in PSKS complaints.224）
Anticompetitive Effects. 16. The proposed transaction likely will substantially reduce competition in the North American newsprint market. Abitibi and Bowater are the two largest producers of newsprint in North America and compete directly against one another to produce and sell newsprint. Abitibi and Bowater currently own approximately 25 percent and 16 percent of capacity, respectively, which will result in a post-merger share of over 40 percent.
17. Demand for newsprint in the North American market has declined over the last several years at a rate of approximately 5 to 10 percent per year because of a significant decline in demand for newspapers. As a result, North American newsprint producers have closed, idled, or converted some of their newsprint capacity. This decline in the demand for newsprint is projected to continue, and the resulting excess newsprint capacity will likely lead Defendants and their competitors to close, idle, or convert more newsprint xxxxx.
18. But for the merger, following the anticipated demand-based reductions in capacity, neither Abitibi nor Bowater acting alone would be of sufficient size to profitably increase the price of newsprint by reducing its own output through strategically closing, idling, or converting its capacity.
19. The proposed transaction would combine Defendants’ large share of newsprint capacity, thereby expanding the quantity of newsprint sales over which the merged firm would benefit from a price increase. This would provide the merged firm with an incentive to close capacity sooner than it otherwise would to raise prices and profit from the higher margins on its remaining capacity.
Anticompetitive Effects. The Proposed Transaction Will Harm Competition in the Markets for Ladle Shrouds and Stopper Rods
24. The production of ladle shrouds and stopper rods involves similar materials and manufacturing processes. In general, manufacturers that are successful in selling ladle shrouds to U.S. customers are also successful in selling stopper rods to U.S. customers, and vice versa.
25. Xxxxxxx and Foseco are two of only three firms that manufacture and sell the vast majority of ladle shrouds and stopper rods to U.S. customers. Xxxxxxx and Xxxxxx have competed with one another on price, service, and innovation in the markets for stopper rods and ladle shrouds. The markets for ladle shrouds and stopper rods would become substantially more concentrated if Xxxxxxx acquires Foseco. Xxxxxxx and Foseco would have a combined share of approximately 75 percent. Using a measure of market concentration called the Xxxxxxxxxx- Xxxxxxxxx Index (‘‘HHI’’) (defined and explained in Appendix A), the proposed transaction would increase the HHI in both markets by approximately 700 points to a post-transaction level in excess of 6000.
26. Customers request bids from ladle shroud and stopper rod suppliers and consider price, quality, service, and innovation in selecting the winning bidder. The proposed acquisition will eliminate Foseco as an independent bidder.
27. This reduction in the number of active bidders from three to two will reduce competition and likely will result in higher prices and/or reductions in service and innovation for a significant number of customers in the markets for ladle shrouds and stopper rods. The likely anticompetitive effect is heightened due to customers’ preferences to maintain supply relationships with two independent suppliers simultaneously. In light of such preferences, the proposed acquisition will eliminate competition to be a customer’s second supplier.
28. Foreign manufacturers likely will not have the incentive or ability to defeat an anticompetitive increase in price or reduction in service or innovation because of their high delivered costs, customers’ preferences for North American suppliers, and/or the poor quality and reputation of their products.
29. The proposed acquisition will substantially lessen competition in the manufacture and sale of ladle shrouds and stopper rods in the United States in violation of section 7 of the Xxxxxxx Act.
Anticompetitive Effects. Anticompetitive effects in a relevant market may be shown through direct evidence of output reductions, increased prices, or reduced quality in the relevant market. The Commission has also defined sufficient evidence of anticompetitive harm to include evidence of “retarded innovation, or other manifestations of harm to consumer welfare.” We reject the Commission’s argument that it has established direct evidence of anticompetitive effect in the form of increased prices. When an antitrust plaintiff advances an antitrust claim based on direct evidence in the form of increased prices, the question is whether it can show an actual anticompetitive change in prices after the restraint was implemented. See Brooke Grp. Ltd. x. Xxxxx & Xxxxxxxxxx Tobacco Corp., 509 U.S. 209, 236-37 (1993). The government could not make that showing because it did not conduct an empirical analysis of the Challenged Agreements’ effect on the price of contact lenses in the online market for contacts. The evidence offered by the government is theoretical and anecdotal; it is not “direct.” Consequently, the Commission’s conclusion that differences between 1-800 Contacts’ prices and those of its competitors constitute direct evidence of the Challenged Agreements’ anticompetitive effects is not supported by substantial evidence.11
