Chad Plumley

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In recent years, antitrust analysis has shifted from historical reasons for wanting to stop agreements in restraint of trade, such as promotion of individual competition, to a more economic based analysis which focuses on efficiency and output. This change in analysis has impacted how coercion is viewed in antitrust analysis. Traditionally, courts looked at whether a party had been coerced to determine if there was a violation of the Sherman Act. In section 1 cases, where the emphasis is on whether there is an agreement, courts have used evidence of coercion to find an agreement between the parties even when one of the parties did not agree to the combination. The importance of coercion has been minimized in many areas of antitrust analysis, but some authors' have argued that determining the existence of an agreement is crucial in a section case that involves a vertical agreement.

The first section of this Article discusses the historical precedents which led to the strict rule that courts apply to coercion cases involving vertical agreements! The first thing that will be examined is how early courts dealt with coercion in this context and how they applied their rule to various situations. The general rule in cases involving vertical agreements is that one who was coerced into an act by threats of force, either economic or other, has no defense to a section violation. The key factor to examine throughout this Article is the role that the alleged coercing party played in the case. In many instances, it is this party who is the focus of the court's attention. It is the coercing party who is the target of the antitrust laws rather than the coerced party. ...

The conclusion of this Article will explain how the solutions presented in section 4 are consistent with the traditional goals and policies of the antitrust statutes. Factors that will be discussed are: (1) How the intent of the defendant is important in determining whether there has been a violation of the statute, and (2) Whether the goals of efficiency and output will be aided by an absolute ban on the use of coercion as a defense in a section case involving a vertical agreement or combination. The result will be that an exception to the application of the coercion rule in cases like MCM Partners is necessary. None of the goals or policies of the antitrust statutes are met by punishing the coerced party for acts they did not voluntarily commit. If the courts refuse to make an exception, the courts should look at the punishment imposed-treble damages-to determine if it really deters parties who feel they have no other choice but to violate the statutes.