If you ever noticed a coupon dispenser or colorful cardboard display while walking down the aisle of your local supermarket, there is a good chance it was put there by News Corp.’s News America Marketing (NAM) – in-store marketing’s dominant player. News Corp.’s dominance, however, was allegedly the result of anticompetitive conduct, according to its former competitor Valassis Communications, Inc. In a 2017 lawsuit, Valassis alleged that News Corp.’s practice of “staggering” the expiration date of exclusive contracts with retailers violated, among other things, sections 1 and 2 of the Sherman Act and section 3 of the Clayton Act, and resulted in preventing Valassis from establishing itself as a viable competitor. After four years of litigation, the case finally went to trial last month, but the parties settled after the jury indicated it would be unable to reach a verdict. Nevertheless, Valassis’ allegations raise an interesting question: what supporting facts and allegations might suggest staggered exclusive contracts constitute anticompetitive conduct?
The Sherman Act was passed in 1890. The Clayton Act in 1914. And they have hardly changed since. Last month, Senator Amy Klobuchar, the new chair of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, proposed an overhaul of the antitrust laws: CLERA, the Competition and Antitrust Law Enforcement Reform Act. If passed, CLERA would constitute the most significant change to antitrust law in a least a generation. In particular, it would also pose substantial new antitrust concerns for technology companies seeking to engage in what have been standard mergers and acquisitions.