Fraudulent Concealment, Self-Concealing Conspiracies, and the Clayton Act

This Note argues that courts should apply a self-concealment standard to section 4B of the Clayton Act rather than require a showing of additional affirmative acts. Part I examines the history of the fraudulent concealment doctrine and its application to antitrust cases. It identifies three different standards used by courts to satisfy the concealment element and finds that courts apply the doctrine inconsistently. Part II analyzes the relationship between the fraudulent concealment doctrine and the self-concealment standard in antitrust cases by examining the judicial development of the doctrine and Congress\u27 intent in enacting section 4B. Part II concludes that the self-concealment standard is an integral part of the fraudulent concealment doctrine and thus should apply to section 4B cases. Part III addresses the policies behind statutes of limitation generally and section 4B specifically, and finds that the self-concealment standard best achieves these policy goals. This Note concludes that courts should toll the antitrust limitation period when the defendant either has affirmatively concealed his wrong or has committed a wrong that inherently conceals itself

Competition at the Teller\u27s Window?: Altered Antitrust Standards for Banks and Other Financial Institutions

Congressional and judicial attitudes towards the banking industry have reflected two, sometimes conflicting, goals-the maintenance of the solvency of financial institutions to protect the interests of depositors, other creditors and the economy at large; and the promotion of competition among these institutions and in the economy. The advancement of these goals has been reflected in the application of the antitrust laws to the industry. For the most part, the Sherman and Clayton Acts apply with the same force and scope to financial institutions as to other industries. In some cases, however, the goal of institutional protection is favored, and the antitrust laws are relaxed to a degree. As an example, the Bank Merger Act insulates banks to some extent from the full reach of section 7 of the Clayton Act, in the belief that certain mergers will strengthen the banks and will promote the financial well-being of the banks\u27 customers and the community in which they operate. By contrast, in some other cases the goal of advancing competition is elevated, and banks are held to a higher antitrust standard than other industries. For example, certain conditional transactions - tying arrangements, reciprocal dealing or exclusive dealing arrangements - are tested by more stringent standards than those applied to other industries. This article will first provide an overview of the banking industry in the United States, with an examination of the different kinds of institutions and their services, and of the different types of banking regulations. An appreciation of the variegated nature of the banking industry will help in evaluating claims either for an antitrust exemption-total or partial-or for higher antitrust standards. The article will then consider three areas of antitrust law in which banks have been singled out for special treatment - mergers and acquisitions, interlocking directorates, and conditional transactions

Ethics, Rights, and White's Antitrust Skepticism

Mark White has developed a provocative skepticism about antitrust law. I first argue against three claims that are essential to his argument: the state may legitimately constrain or punish only conduct that violates someone’s rights, the market’s purpose is coordinating and maximizing individual autonomy, and property rights should be completely insulated from democratic deliberation. I then sketch a case that persons might have a right to a competitive market. If so, antitrust law does deal with conduct that violates rights. The main thread running throughout the article is that what counts as a legitimate exercise of property rights is dynamic, sensitive to various external conditions, and is the proper object of democratic deliberation

Competition at the Teller\u27s Window?: Altered Antitrust Standards for Banks and Other Financial Institutions

Congressional and judicial attitudes towards the banking industry have reflected two, sometimes conflicting, goals-the maintenance of the solvency of financial institutions to protect the interests of depositors, other creditors and the economy at large; and the promotion of competition among these institutions and in the economy. The advancement of these goals has been reflected in the application of the antitrust laws to the industry. For the most part, the Sherman and Clayton Acts apply with the same force and scope to financial institutions as to other industries. In some cases, however, the goal of institutional protection is favored, and the antitrust laws are relaxed to a degree. As an example, the Bank Merger Act insulates banks to some extent from the full reach of section 7 of the Clayton Act, in the belief that certain mergers will strengthen the banks and will promote the financial well-being of the banks\u27 customers and the community in which they operate. By contrast, in some other cases the goal of advancing competition is elevated, and banks are held to a higher antitrust standard than other industries. For example, certain conditional transactions - tying arrangements, reciprocal dealing or exclusive dealing arrangements - are tested by more stringent standards than those applied to other industries. This article will first provide an overview of the banking industry in the United States, with an examination of the different kinds of institutions and their services, and of the different types of banking regulations. An appreciation of the variegated nature of the banking industry will help in evaluating claims either for an antitrust exemption-total or partial-or for higher antitrust standards. The article will then consider three areas of antitrust law in which banks have been singled out for special treatment - mergers and acquisitions, interlocking directorates, and conditional transactions