Fairness and Antitrust

Another trend affecting antitrust lawyers is an increasing effort to use state unfair competition laws to challenge business activities. Many complaints now are based more on whether a practice or pricing structure is fair, such as challenges to pharmacy pricing practices or pharmaceutical pricing. It is difficult to deal effectively with challenges from this perspective. To many antitrust practitioners , it seems improper to even have to deal with it because fairness is not a concept easily analyzed or dealt with from an economics perspective, as is antitrust law.

There will be struggle in creatively developing modes of economic analysis to assist in responding to unfairness challenges, but it probably can be done. My partners and I have had some success in getting courts to understand that, while a company's business practice may not be one that everybody applauds, it still may be efficient and pro-competitive and that, therefore, it should not be prohibited as unfair competition. The FTCs standards and approach in this area is of help in developing effective responses. If the activity is one which society nonetheless wishes to control, then the proper course is to control that activity by legislation, not by saying that it violates antitrust or unfair competition law. The role that antitrust lawyers can play on this issue is to help develop a competitive analysis, and show that activities that are seemingly unfair or differently applied, may nonetheless be efficient and procompetitive.