Recent Supreme Court cases, along with newer economic theory, cast doubt on the continued viability of the concentration calculus used to evaluate mergers

Article Abstract:

Three developments arising from Supreme Court cases and economic research undermine the continued use of the Herfindahl-Herschman Index's concentration calculus to evaluate mergers in antitrust cases. State Oil Co v. Khan is one development, a ruling in which the Supreme Court overturned a 30-year-old precedent holding that maximum price fixing was illegal per se. The court's willingness to re-examine such well-established precedent showed it might be willing to re-evaluate other theories long thought sound. The Daubert-Joiner standards for scientific evidence might also mean some skepticism on scientific evidence.

Evaluation, Acquisitions and mergers, Antitrust law, Monopolies

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The law governing a franchisor's encroachment in the market of its franchisee gains clarity because of a recent 5th Circuit decision delineating standards

Article Abstract:

Clark v. America's Favorite Chicken Co., decided in 1997 by the US Court of Appeals for the 5th Circuit, clarifies some of the confusion surrounding the concept of encroachment in franchising law. Franchisees in the case claimed that the franchisor harmed their businesses by instituting a marketing strategy that was inappropriate for their locations. The court, affirming the lower court's ruling, held for the franchisor. It decided there was no encroachment because the marketing strategy was specifically permitted by the contract, was applied systemwide without discrimination and made business sense.

Cases, Franchises, Breach of contract, Implied covenants

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