Antitrust Exclusivity Agreements
In addition, the Ministry considers that while short-term exclusivity agreements are less likely to affect competition than long-term agreements, even agreements that can be terminated on demand can sometimes be anti-competitive. The third circuit supported this view at Dentsply and said that the economic impact of a termination policy for customers dealing with a rival „can conclude the agreements realistically. as effective as in written contracts. (99) The participants in the discussion were different on this point (100), but the Ministry considers that the legality of exclusive trade should not depend solely on its duration. Are you not able to compete with certain customers because these customers are bound by exclusive agreements with your competitors? Or are you a competitor who has or is considering an exclusive agreement? In another important First Circuit decision, that court approved in 1993 a contested exclusivity agreement under Sections 1 and 2 of the Sherman Act. The agreement provided for an obligation for a seller to sell their production to a single buyer: about twenty-five percent of family doctors in New Hampshire agreed to sell their services to Healthsource and not to another health organization (HMO). As noted above, one treaty states that „seizure percentages below 30 per cent appear harmless“ (102) and several participants agreed that courts generally recognize a safe haven for exclusive trade, which concerns less than thirty per cent of market share. (103) The Ministry is also of the opinion that exclusive distribution agreements which exclude less than thirty per cent of existing customers or exclude actual distribution should not be illegal, but stresses that exclusive distribution operations, which concern more than thirty per cent, should not be automatic or presumed illegal. 76. See id. at 89 (tax); id. at 13637 (Farrell) (examination of the potentially different effects of exclusivity agreements with retailers in relation to consumers); see, for example.B.
Kenneth L. Glazer & Abbott B. Lipsky, Jr., Unilateral Refusals to Deal Under Section 2 of the Sherman Act, 63 Antitrust L.J. 749, 790 (1995) („Cooperation between a supplier and downstream intermediaries in promoting the product may promote brand competition. On the other hand, consumers or final consumers rarely play a role in activities that promote the successful distribution of the product – their only role in the process is that of the customer“.); Tax, a. a. O. Note 2, at 118.
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