4 ms·
Matt glosses over the caselaw and rules.. This case is nowhere near as likely to succeed as he thinks. I'll just quote the FTC itself here: https://www.ftc.go
by DannyBee 3y ago
Matt glosses over the caselaw and rules..
This case is nowhere near as likely to succeed as he thinks.
I'll just quote the FTC itself here:
https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/single-firm-conduct/exclusive-supply-or-purchase-agreements https://www.ftc.gov/advice-guidance/competition-guidance/gui...
First, Panini is not a small newcomer trying to break in, in fact, they had exclusive rights prior to Fanatics (and still do).
This case would be much more likely to succeed if it was a newcomer trying to break in.
As a result, Panini is going to have a hell of a time arguing that because somebody else won the contracts, it's now bad.
Second, Matt literally doesn't mention it, but all Fanatics would have to do anyway is show some set of procompetitive effects of the agreements, which is fairly easy to do.
See, e.g., https://www.justice.gov/archives/atr/competition-and-monopoly-single-firm-conduct-under-section-2-sherman-act-chapter-8#:~:text=Panelists%20generally%20agreed%20that%20this,way%2C%20I%20have%20got%20a https://www.justice.gov/archives/atr/competition-and-monopol...
(just to quote the DOJ)
Third: He throws in some stuff about MSRP, but cites no caselaw because MSRP's are legal, and even kicking out dealers who refuse to honor them is legal.
Again, see the FTC:
https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/dealings-supply-chain/manufacturer-imposed-requirements https://www.ftc.gov/advice-guidance/competition-guidance/gui...
I actually personally think MSRP and friends should have stayed per-se illegal, etc.
But it's not.
Another significant issue with this case overall is: The remedies won't fix anything - Panini will have a hell of a time showing that divestment or injunction would fix the market.
Instead, to create competition of any sort, you'd have to enjoin MLB/NFL/etc from exclusive dealing with a single trading card manufacturer.
Otherwise, whether it's panini or fanatics, you will still have a single licensed trading card manufacturer.
But MLB/et al are not party to the suit. So they can't be enjoined.
Their desire for "Fanatics is not allowed to sign exclusive contracts" would require that the MLB/et al not want exclusive contracts, which they do!
Panini knows this, and in practice they just want Fanatics to not be allowed to sign exclusive contracts. They themselves want to turn around and resign exclusive contracts forever :)
This is totally obvious to any judge, etc, and as a result, the suit will simply seem like sour grapes - they are not pissed that the market is being monopolized, they are pissed they are not the ones doing it. They will get really hard to answer questions about how the remedies will create competition in the market, rather than them monopolizing the two-party market instead.
In practice, if they want competition, they should be suing MLB/et al.
I don't give this case a super high chance of success.
It may succeed, for sure, but it's a much tougher road than Matt paints.