Antitrust Immunities And Defenses

Pages63-73
63
CHAPTER IV
ANTITRUST IMMUNITIES AND DEFENSES
As both the electric and gas industries have moved from a regulatory
to a deregulatory environment, firms in these industries have had to
adjust their business activities to take into account applicable federal and
state antitrust laws. This requires both consideration of the potential
sources of antitrust liability, and the defenses and immunities that are
available to rebut antitrust claims.
The antitrust statutes most likely to concern firms operating in the
energy sector are Sections 1 and 2 of the Sherman Act204 and Section 7 of
the Clayton Act.205 As a general matter, Section 1 of the Sherman Act
prohibits unreasonable agreements in restraint of trade while Section 2
prohibits monopolization, attempted monopolization, and conspiracies to
monopolize. Section 7 of the Clayton Act prohibits mergers or
acquisitions that may substantially lessen competition or tend to create a
monopoly.206 Specific issues arising under each of these statutes are dealt
with in subsequent chapters.
Firms operating in regulated industries are accustomed to avoiding
antitrust liability under these statutes because of the existence of certain
immunities. However, the same behavior that might be protected or even
encouraged when done in a regulated environment could lead to antitrust
exposure when pursued on the unregulated side of the business.
Deregulation makes it especially important that energy companies
change their behavior accordingly. As deregulation progresses at
different paces in different areas of the country, the nature and scope of
remaining immunity could differ.
When private parties make decisions, the risk of antitrust liability is
far greater than when regulators make the decisions. This, of course, is
not to say that there is no antitrust risk when regulators are involved, as
numerous cases attest. It is only a reminder that risk comes in degrees,
and the degree of risk for antitrust liability is rising sharply with
deregulation in the energy markets.
204. 15 U.S.C. §§ 1, 2 (1997).
205. 15 U.S.C. § 18 (1997).
206. Each of these statutes is addressed at length in ABA SECTION OF
ANTITRUST LAW ANTITRUST LAW DEVELOPMENTS (5th ed. 2002) (ALD
V): Ch. I Restraints of Trade § 1; Ch. II Monopolization and Related
Offenses § 2; and Ch. III Mergers and Acquisitions § 7 (5th ed. 2002).

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