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Predatory Pricing and State Below-cost Sales statutes in the United States: An Analysis

Report

2001


by
Terry Calvani

Partner, Pillsbury Madison & Sutro (Washington, D.C. & San Francisco, CA); formerly Commissioner, United States Federal Trade Commission.

The following is an analysis of the United States treatment of predatory pricing including state below‑cost sales laws. The United States Federal Trade Commission was an active participant in formulating predatory pricing policy during my term of office asCommissioner. I have drawn on this experience where appropriate.

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Executive summary

Predatory pricing is generally defined as sales below cost by a dominant firm over a long enough period of time for the purpose of driving a competitor from the market; the predator firm then raisesprices to supracompetitive levels to recoup its losses and render the practice profitable.Footnote 1

The United States has a rich history of both statutory and case law that treats issues of price predation. Early federal judicial treatment was both aggressive and economically unsophisticated. As a result the law of predatory pricing suppressed competition to the injury of consumers who paid supra‑competitive prices. Federal law on predatory pricing has become more rational and pro‑consumer. Today there is a consensus led by the U.S. Supreme Court that instances of predatory pricing are very rare and that courts ought not intervene absent proof of sales below an economically informed measure of costs and evidence of probable recoupment.Footnote 2 The U.S. federal approach to the subject is quite similar to that of the Canadian Competition Bureau as reflected in its Predatory Pricing Enforcement Guidelines.Footnote 3

Many, although by no means all, of the states have laws that purport to treat predatory pricing. Some states have predatory pricing laws of general application. Other state laws focus on specific markets, e.g., retail sale of gasoline. Some have both. Construction and enforcement of state law is also diverse. Some states, like their federal counterparts, require proof of sales below an economically informed measure of costs and proof of probable recoupment. Others have adopted a more "populist" view reminiscent of the federal treatment in an earlier age and focus on injury to competitors rather than injury to competition. In yet other states, there has been little activity.

Studies of gasoline markets demonstrate that consumers pay higher prices in markets with gasoline below costs sales laws. More interestingly, however, these studies also show that independent dealers are not better off as a result of the laws. Thus consumers pay higher prices, but independent dealers obtain no greater returns. Perhaps for these reasons, efforts to secure similar legislation at the federal level in the U.S. have failed.

U.S. antitrust law is dynamic. Federal antitrust law has matured and today seeks to protect competition and not competitors. The new learning has not fully embraced state law as yet, but there is evidence that state legislatures and judiciaries are becoming more sophisticated.

Predatory pricing laws generally

1. The U.S. federal experience—

United States federal lawFootnote 4 (like the federal law of CanadaFootnote 5 ) proscribes predatory pricing.Footnote 6 In general, "predatory pricing" occurs "where a dominant firm charges low prices over a long enough period of time so as to drive a competitor from the market or deter others from entering and then raises prices to recoup its losses.Footnote 7 Although predatory pricing was once thought commonplace, claims of predation have produced few recent federal cases in the United States.Footnote 8 Today there is a consensus, led by the United States Supreme Court, that claims of predatory pricing ought to be approached with a very healthy skepticism.Footnote 9 Careful consideration of the subject explains why this is so.

Low prices are the object of competition policy and a boon to consumers.Footnote 10 It is only when low prices pose a serious problem that they become legitimate objects of concern. That is to say when they drive competitors from the market and subsequently enable the predator to raise and maintain anticompetitive prices to the injury of the consuming public.Footnote 11 Separating the low competitive prices from real predation is the task—and a difficult one at that. As one distinguished jurist recently wrote:

Consumers, for whose benefit the antitrust laws are designed, welcome low prices but not monopoly prices. Contentions that firms practice predatory pricing—the sequence low‑price‑now‑high‑price‑later—accordingly create difficult problems for courts. If a rival files suit during the "low price" period, how can a court tell whether the price is low because the defendant is an efficient producer driving down costs (or just driving price down to cost) as opposed to a predator? A price "too low" for an inefficient rival may be just right from consumers' perspective, showing only that the defendant's costs of production are lower than those of the plaintiff—for which it should receive a reward in the market rather than a penalty in the courthouse. So the plaintiff's observation that it is losing business to a rival that has slashed prices is consistent with both aggressive competition and predatory pricing. How to tell them apart?Footnote 12

The two look very much alike. The inherent difficulty of separating predatory from tough competition cautions modesty by antitrust policy makers lest they unwittingly intervene to the detriment of consumers whose interest they seek to protect.

The legal history of predatory pricing in the U.S. sheds some light on this problem. This history can be conveniently treated in three periods. During the first period following enactment of the Sherman ActFootnote 13 through the 1960's, claims of predatory pricing were taken quite seriously.Footnote 14 Indeed, the allegedly predatory tactics employed by John D. Rockefeller and the "Standard Oil Trust" are part of American folklore.Footnote 15 The Standard Oil CaseFootnote 16 became the paradigm. It was widely believed that "Robber Barons" were successfully able to drive competitors from the marketplace by temporarily selling below cost. Once achieved, these firms would raise prices above a competitive level and use those monopoly profits to finance predation elsewhere until they had taken over the entire marketplace.Footnote 17

This view reached its zenith in the U.S. Supreme Court's decision in Utah Pie Co. v. Continental Baking Co.Footnote 18 There plaintiff, the leading vendor of frozen pies in its market, brought suit against three national bakeries alleging that they had increased their market share by predatory pricing. Finding that the national bakeries sought to increase their market share above their combined 28% the Court concluded that they charged less for their pies in the plaintiff's market than they did elsewhere. Indeed, during the forty‑four month "price war", the defendants saw the plaintiff's market share decrease to 45%. The Supreme Court reinstated the jury verdict for the plaintiff notwithstanding evidence that the plaintiff's sales volume had increased during the relevant period and that it had continued to make a profit. While the Court did not address the specific definition of "below cost" sales, it suggested that average total cost was the appropriate standard. Suffice it to say that predatory pricing cases of the era were characterized by the relative large size of the alleged predator, geographic price discrimination, sales below average total costs, and predatory intent.Footnote 19

The Utah Pie decision stood antitrust principles on their head. Before the "price war" plaintiff enjoyed a "quasi‑monopolistic 66.5% of the market.Footnote 20 It remained profitable throughout the period; indeed, its sales volume increased. As the dissenting Justices observed: "(I)f we assume that the price discrimination proven against the respondents had any effect on competition, that effect must have been beneficent. (T)he Court has fallen into the error of reading the (statute) as protecting competitors, instead of competition. Footnote 21 Utah Pie and its progeny mark the high point in U.S. antitrust attention to predatory pricing and "below cost" sales.Footnote 22

The second period was inaugurated with the publication of a truly seminal article on predatory pricing by two eminent antitrust scholars in 1975. While the legal treatment of price predation had been criticized by many,Footnote 23 Predatory Pricing and Related Practices Under Section 2 of the Sherman Act by Harvard Law School Professors Donald F. TurnerFootnote 24 and Philip AreedaFootnote 25 radically changed the U.S. approach to the subject.Footnote 26 Their important article offered a cost‑based rule for determining whether or not a pricing strategy is predatory.

Areeda & Turner observed that predatory pricing is not common.Footnote 27 Nonetheless, they concluded that predatory pricing is still a subject for legitimate concern to antitrust policy makers as long as great care is taken not to deter vigorous competition.

That predatory pricing seems highly unlikely does not necessarily mean that there should be no antitrust rules against it. But it does suggest that extreme care be taken in formulating such rules, lest the threat of litigation‑aterially deter legitimate, competitive pricing.Footnote 28

Areeda and Turner develop their rule from an analysis of the short‑run, static model of the firm used in all introductory price theory texts. Asserting the textbook theorem that marginal cost pricing leads to a proper allocation of resources in the short run and claiming that the only explanation for below‑marginal cost pricing is exclusionary behavior, Areeda and Turner suggest:

  1. Any price at or above "reasonably anticipated" short‑run marginal costs is nonpredatory.
  2. A price below "reasonably anticipated" short‑run marginal cost is predatory unless at or above average total cost...
  3. Since data on marginal costs are difficult to obtain, average variable costs, which are much easier to ascertain, should be used by the courts as a surrogate for marginal costs in the above formulation, unless average variable costs fall significantly below marginal cost in the relevant range of output.Footnote 29

Without embarking on an exegesis of the legal and economic literature, suffice it to say that almost every Court of Appeals in the United States has embraced some form of the Areeda‑Turner test.Footnote 30 The mode of analysis used by the Canadian Competition Bureau is consistent.Footnote 31 The problem with the Areeda‑Turner cost‑based test is that it is not easy to apply in reality.Footnote 32

While it is difficult to fix with precision the start of the third and latest period, the 1989 decision of the Court of Appeals in A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc. Footnote 33 is an appropriate place to begin. The case involved a pricing battle between egg producers. The plaintiff's expert economist had testified at trial that the defendant's prices were below its average total costs and less than its average variable costs for a period of time. Moreover, the cost data were accompanied by executive comments evidencing predatory intent. Some of the more colorful ones included: "We are going to run you out of...business. Your days are numbered.Footnote 34 Recognizing that application of a price/cost standard is "difficult business,Footnote 35 the court stated that one should first consider the likelihood that the predator would be able to recoup its predation costs.

Predatory prices are an investment in a future monopoly, a sacrifice of today's profits for tomorrow's. The investment must be recouped. If a monopoly price later is impossible, then the sequence is unprofitable and we may infer that the low price now is not predatory. More importantly, if there can be no "later" in which recoupment could occur, then the consumer is an unambiguous beneficiary even if the current price is less than the cost of production. Price less than cost today, followed by the competitive price tomorrow, bestows a gift on consumers. Because antitrust laws are designed for the benefit of consumers, not competitors..., a gift of this kind is not actionable.Footnote 36

Because determination of likelihood of recoupment is easier than undertaking the price/cost characterization and comparison,Footnote 37 the court held that trial courts ought to undertake the recoupment analysis first. If recoupment is implausible, then one need not undertake the laborious price/cost exercise.

Market structure offers a way to cut the inquiry off at the pass, to avoid the imponderable questions that have made antitrust cases among the most drawnout and expensive types of litigation. Only if market structure makes recoupment feasible need a court inquire into the relation between prices and cost.Footnote 38

Recoupment is a necessary, but insufficient, element of the plaintiff's case. The court went on to state that intent ought play no role in assessing whether conduct is predatory.Footnote 39

This approach was embraced by the U.S. Supreme Court in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.Footnote 40 The case involved allegations of predatory pricing by Brown & Williamson against a smaller rival in an effort to discipline the pricing of generic cigarettes.Footnote 41 The case is important for several reasons. First, the Court noted that predatory pricing was generally implausible.Footnote 42 Justice Kennedy, writing for the Court, noted earlier authority that concluded "predatory pricing schemes are rarely tried" citing Matsushita Electric Industrial Co. v. Zenith Radio Corp. Footnote 43 In Matsushita, the Court had stated:

(T)he success of such schemes in inherently uncertain: the short‑run loss is definite, but the long‑run gain depends on successfully neutralizing the competition. Moreover, it is not enough simply to achieve monopoly power, as monopoly pricing may breed quick entry by new competitors eager to share in the excess profits. The success of any predatory scheme depends on maintaining monopoly power for long enough both to recoup the predator's losses and to harvest some additional gain. Absent some assurance that the hoped‑for monopoly will materialize, and that it can be sustained for a significant period of time, "(t)he predator must make a substantial investment with no assurance that it will pay off." ... For this reason, there is a consensus among commentators that predatory pricing schemes are rarely tried, and even more rarely successful.Footnote 44

Second, the Court stated that only truly below costs sales ought be treated as predatory. In that connection, the Court observed:

(T)he exclusionary effect of prices above a relevant measure of cost either reflects the lower cost structure of the alleged predator, and so represents competition on the merits, or is beyond the practical ability of a judicial tribunal to control without courting intolerable risks of chilling legitimate price‑cutting. "To hold that the antitrust laws protect competitors from the loss of profits due to such price competition would, in effect, render illegal any decision by a firm to cut prices in order to increase market share. The antitrust laws require no such perverse result.Footnote 45

The Court did not further discuss which price/cost standard was appropriate because both parties had stipulated that average variable cost, as a surrogate for marginal cost, was the standard to be applied.

Third, the Court held that plaintiff must prove the likelihood that the alleged predator will be able to later recoup the losses associated with its predatory pricing. The Court reasoned that the unsuccessful predator (the firm that prices predatorily but is unsuccessful thereafter raising prices above a competitive level) does not present an antitrust issue.Footnote 46 While that firm may have made life miserable for firms within the market, consumers reap the benefit. Mr. Justice Kennedy wrote: "That below‑cost pricing may impose painful losses on its target is of no moment to the antitrust laws if competition is not injured: It is axiomatic that the antitrust laws were passed for "the protection of competition, not competitors.Footnote 47

While predatory pricing remains actionable under U.S. federal law, the current caselaw is quite skeptical of the theory generally. On the one hand, there is the view that it is rarely tried and even more rarely successful. On the other, there is also the view that the costs of inappropriate intervention are particularly high since consumers are denied the benefits of tough competition. Current law embraces the cost/price tests suggested by Professors Areeda and Turner, which are not easy to satisfy. Moreover, the recoupment requirement imposed by the Court in Brooke Group requires plaintiff to demonstrate that there is a likelihood of recoupment before going forward. The universe of actionable cases in U.S. federal courts may not be a null set, but it is not large. Consumers are the beneficiaries of this change in the law.

Unlike state law, U.S. federal law does not contain any significant modern predatory pricing provision that focuses on a specific market or channel of distribution. Efforts to secure special treatment have generally failed. Nonetheless the experience with retail sale of gasoline merits mention. In 1981, the U.S. Department of Energy completed a congressionally‑mandated study of the retail gasoline market.Footnote 48 The study failed to find indications of predatory pricing and for a short time dampened any congressional enthusiasm for legislation. Throughout the 1980's, however, there were efforts to enact legislation that would require divorcement of retail operations by large integrated petroleum companies. The Small Business Motor Fuel Marketer Preservation Act of 1983 is a good example.Footnote 49 As its title would suggest, the legislation was promoted by organizations of independent gasoline retailers. This and similar legislation never secured sufficient support in Congress.Footnote 50

2. The U.S. state experience—

Generally‑‑ Many states have laws that address predatory pricing and related issues.Footnote 51 In a federal system as diverse as the United States, it is difficult to generalize with precision. Some statutes have been construed more or less consistently with the modern federal precedents described above.Footnote 52 Others have been interpreted in the more populist tradition now rejected by the federal courts.Footnote 53 Discussing these latter statutes, one

(W)hile the (Supreme) Court has justifiably increased the difficulty which plaintiffs face in succeeding on a predation claim under federal law, many states continue to encourage the use of lawsuits to thwart the competitive procompetitive conduct by making it easy to prove a violation of predatory pricing under a "sales below cost" statute.

Ostensibly designed with goals identical to their federal counterparts—to promote competition—these state statutes prohibiting "sales below costs" are usually poorly disguises attempts to protect small, local businesses from competition by larger, more national firms. Such statutes, therefore, promote inefficiency at the expense of the consumer.Footnote 54

Nonetheless, the U.S. experience with price predation cannot be discussed fully without also focusing on state law.

Foreign commentators sometimes note that the U.S. has a well‑developed state regime of predatory pricing legislation. This probably overstates the reality. Some state statutes are enforced, others are not.Footnote 55 While one would expect to find higher prices in those jurisdictions with enforcement programs, the implicit threat of prosecution may impact pricing behavior—particularly in those jurisdictions with criminal sanctions.Footnote 56 Thus the statutes may affect pricing behavior without regard to the enforcement record.Footnote 57

Some state laws are general;Footnote 58 others focus on particular industries like petroleum retailing.Footnote 59

Table A: State sales‑below‑cost laws
General SBC LawFootnote 60 Gasoline‑Specific SBC LawFootnote 61

Arkansas

Alabama

California

Colorado

Colorado

Florida

Hawaii

Massachusetts

Idaho

Missouri

Kentucky

New Jersey

Louisiana

North Carolina

Maine

Tennessee

Maryland

Utah

Massachusetts

 

Minnesota

 

Montana

 

Nebraska

 

North Carolina

 

North Dakota

 

Oklahoma

 

Rhode Island

 

South Carolina

 

Tennessee

 

Utah

 

Washington

 

West Virginia

 

Wisconsin

 

Wyoming

 

The prohibition against "below‑cost sales" of frozen desserts in my home state of Tennessee is one of the more curious.Footnote 62

The efforts to secure state legislation regulating sales within the retail gasoline market, noted above, are a good example of these laws.Footnote 63 Generally speaking this legislation has been sponsored by independent dealers organizations.Footnote 64 As discussed above, state courts have construed these statutes in different ways. Nonetheless, courts increasingly focus on injury to competition rather than injury to competitors.

The American Law Reports annotation, Validity, Construction, and Application of State Statutory Provision Prohibiting Sales of Commodities Below Cost, summarizing the case law, was published in 1985.Footnote 65 The current supplement discusses the state case law from 1985 through 1998.Footnote 66 Of the eleven below‑cost sales cases analyzed in the supplement,Footnote 67 a very clear majority were decided in favor of defendants. While this alone does not suggest much, a reading of those recent decisions reflects that state courts are increasingly concerned about injury to competition rather than injury to competitors.Footnote 68 Accordingly this suggests that the state courts are following—albeit more slowly—the lead of the federal courts in this area.

The effect of state petroleum "below cost sales" statutes has been the object of study. Consistent with economic theory, these laws appear to produce higher retail gasoline margins. Footnote 69 One very recent study of U.S. state statutes by Anderson and Johnson merits attention.Footnote 70 They unambiguously conclude: "SBC laws directed specifically at the retail gasoline market have resulted in higher margins.Footnote 71 These economists found that "(t)he difference between margins at locations where a gasoline‑specific (sales below cost) law is present and where there are no SBC laws to be over 2 cents per gallon.Footnote 72 Professors Anderson and Johnson conclude "(d)ata on the minimum observed margin indicate that (these laws) restrict competition by limiting downward pressure on retail margins.Footnote 73

This latest study by Anderson and Johnson is consistent with the conclusion of prior studies. For example, one study by Savvides‑Gellerson of the effects of state "below‑cost" selling laws in three southeastern states found significantly higher gasoline prices following the then‑recent enacted legislation.Footnote 74

Statistical comparisons of price changes prior to and after the enforcement of the laws indicates that retail prices in the states with sales "below‑cost" laws increased relative to both the U.S. average price and the average price of gasoline sold in neighboring states without sales "below‑ cost" laws.Footnote 75

The increased costs (in 1987 dollars) were large.

The below‑cost selling law was estimated to have reduced consumers' income in Alabama by $37 million, in Georgia by $43 million, and in Florida by $57 million as a result of the increase in motor gasoline prices, during the first twelve months following the implementation of the law.Footnote 76

Importantly, Savvides‑Gellerson reports that the correlation was statistically significant: "the statistical test supports the conclusion that the "below‑cost" selling laws are associated with a statistically significant increase in retail gasoline prices.Footnote 77 Accordingly, the study concludes:

the higher retail prices associated with enactment of below‑cost sales laws may be attributed to reduced competition. Hence, the policy implication...is that below‑cost legislation is both anticompetitive and anti‑ consumer.Footnote 78

Previous studies appear to confirm these results.Footnote 79

Interestingly, higher margins may not mean higher profits for the dealers that the legislation was sought to protect. Anderson and Johnson conclude: higher "margins...in states with gasoline‑specific SBC laws does not...imply that economic profits of gasoline retailers in those states are higher.Footnote 80 Entry conditions and the like may insure that retailers garner no additional profits.Footnote 81 If true, such laws have a deleterious effect on consumers while failing to provide protection to those for whose benefit the legislation was enacted.

More recently, Professor Johnson examined whether gasoline‑specific SBC laws have significantly altered the number and structure of gasoline outlets in states with such legislation.Footnote 82 This study focuses specifically on whether these laws protect independent dealers. Consistent with the earlier work, Johnson concludes that they do not. The decline in the number of independent dealers appears to be the same without regard to whether the state has a SBC law.Footnote 83 Johnson proffers two explanations. First, entry into the retail gasoline business is relatively unencumbered and high profit margins can be expected to attract entry. The rise of the gasoline retailer/convenience store also suggests that controlling the margin on one of many goods sold by the retailer does not prevent vigorous competition on other margins.

These conclusions are consistent with that of an earlier study by M. J. Houston.Footnote 84 That study assessed the efficacy of minimum markup legislation in preserving small business. If the laws were effective, states with such legislation should have more robust smaller enterprises. The study failed to find that states with the legislation had more robust smaller businesses. Houston concluded that the laws were "insignificant in their influence on small retail success." From a public policy perspective, the result is a loss for the consumer and no gain for the independent dealer.

Consumers may appreciate this conclusion. Montana enacted its motor‑fuel SBC law in 1991.Footnote 85 That statute provides that a retailer may not sell gasoline at less than its delivered cost plus the cost of doing business. The statute generated consumer hostility especially when motorists compared their prices with those in neighboring Wyoming. When the legisl ature failed to take action, citizens mobilized and secured sufficient signatures to place the issue on the November 1998 general election ballot. The referendum measure passed and the Montana statute was repealed.

The finding that state below cost legislation increases gasoline prices is generally consistent with other studies of the U.S. gasoline market finding competitive conditions that do not warrant interference. Illustrative is the very recent conclusion of Professor Philip E. Sorensen:

There is no reason for any state legislature in the U.S. to interfere with the existing market in gasoline distribution. The experience of the U.S. in the years since 1981 shows that the gasoline industry is competitive at both the wholesale and the retail levels. Real gasoline prices are at their lowest levels since the 1920's. Products and services continue to improve in quality and timesaving convenience. At the same time, rates of profits earned by refiners are low—the antithesis of what would be expected under conditions of price coordination or market power.Footnote 86

Following the sharp increase in the price of retail gasoline during the early months of 1996, President Clinton ordered the Department of Energy to investigate. Consistent with prior studies of the industry,Footnote 87 the resulting study found that market forces (rather than anticompetitive behavior) determined pricing conditions.Footnote 88

FTC Participation‑‑The United States Federal Trade Commission ("FTC") is a federal law enforcement agency responsible for enforcement of the antitrust and consumer protection laws.Footnote 89 It is quite similar to the Canadian Competition Bureau.Footnote 90 During my tenure as Commissioner (1983‑90) and as Acting Chairman (1985‑86), the Commission was often asked by legislators to comment on the competitive effects of such proposed "below‑cost" legislation. We generally responded and routinely opposed efforts to enact such legislation. We did so because we believed that the legislation was unnecessary and‑‑more importantly‑‑because we concluded that the bills, if enacted, would increase the retail price of gasoline to U.S. consumers.Footnote 91 The Anderson‑Johnson study confirms the Commission's wisdom in opposing these measures.

In our review of proposed legislation we were concerned about proposals that went beyond the proscription of predatory ("below cost") pricing. Some proposals included both a measure of profit for traders and the allocation of costs to integrated companies.Footnote 92 Sometimes these terms were not defined with precision. We believed that these proposals might proscribe not only predatory, but also vigorously competitive pricing.

We were concerned that integrated companies might err "on the safe side" by pricing their own sales to the retail market higher than would otherwise be permitted. (This would be particularly true where legislation contains imprecise terms or criminal sanctions.)Footnote 93 We were also concerned that litigation would be quite protracted as litigants and the courts attempt to give meaning to these otherwise imprecise terms.

It should be noted that these proposals were part of a larger set of proposed legislation that focused on the retail sale of gasoline. Other related proposals included laws that would forbid self‑service gasoline stations,Footnote 94 that mandated minimum retail gasoline price "markups", Footnote 95 and that required integrated petroleum companies to divest themselves of their retail operations.Footnote 96 While different, all are variations on the same theme. Integrated companies price predatorily, and independents need protection from this competition.

Conclusion

The U.S. experience with predatory pricing has matured over time. Federal practice is today consistent with a consumer protection rationale for antitrust. Focus is on the maintenance of the competitive process rather than the protection of competitors. State practice is more varied. Some jurisdictions have general proscriptions against predatory pricing, others have special "below cost" laws that focus on particular channels of distribution, and still others have combinations of both. State enforcement of these laws is also varied. Moreover, judicial construction of the laws is not uniform. Some state courts have required some demonstration of injury to competition; others have not. It has taken the U.S. federal courts many years and much litigation to achieve the present level of sophistication. It will probably take some additional time and case law before state law reaches the same point.

The economic literature concludes that state retail gasoline below cost sales legislation has increased costs to consumers. Interestingly, such legislation appears not to have provided independent dealers either higher profits or greater stability. Thus the laws appear to come at a cost to consumers without any attendant benefit to the channel of distribution the legislation sought to protect.

March 1, 1999


Terry calvani

PILLSBURY MADISON & SUTRO LLP

East Tower, Ninth Floor
1100 New York Avenue, NW
Washington,  D.C. 20005‑3000
Tel: 1 202 861 3000

Terry Calvani is a partner in the antitrust practice group of Pillsbury Madison & Sutro LLP. Prior to re‑joining the firm, he was Commissioner of the US Federal Trade Commission (1983‑ 1990) and was acting Chairman of the Commission during 1985

Following his graduation from the Cornell Law School, where he was Articles Editor of the Law Review, he practiced with the firm in San Francisco. From 1974‑1983, he was Professor of Law at Vanderbilt School of Law teaching courses on antitrust law. Mr. Calvani continues to teach antitrust—most recently at the Harvard Law School (Winter/Spring 1998 and Fall/Winter 1999).

He is the author of a book and numerous articles and has lectured at many seminars on antitrust issues. He has served as chairman of the ABA Antitrust Section's Robinson‑Patman Committee, Noerr Doctrine & State Action Committee, Special Committee on Antitrust Penalties and Damages, and on its governing council. He is a member of the American Law Institute, serves on the advisory board of the Antitrust Bulletin, and has been a member of the Administrative Conference of the United States.

Since returning to practice, Mr. Calvani has worked on acquisitions/joint ventures in a very large number of industries and their review by federal and state agencies. He has participated in civil and criminal non‑merger investigations in many industries by both federal and state authorities. He has also provided antitrust counseling to a large number of companies and several trade associations.

He maintains his office in Washington and San Francisco and lives in Nashville, Tennessee.

Other office

235 Montgomery Street, Room 1288
San Francisco  CA 94104
Tel: 1‑415‑983 1598
Fax: 1‑415‑9831200

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