'McWane': Tacit Coordination Versus Illegal Agreement

, New York Law Journal


In their Antitrust Trade and Practice column, Skadden Arps partners Shepard Goldfein and James A. Keyte write: In the recent case against McWane Inc. Ltd., the FTC affirmed an exclusive dealing claim against the company, but it deadlocked 2-2 (along party lines) on price-fixing claims. Unfortunately, the lack of a fifth commissioner to break the tie left observers without a clear statement on how, at least within the FTC, to dissect price-fixing allegations and proof, and immediate reactions to the decision expressed disappointment at the lack of guidance. Nevertheless, there are at least a few lessons to draw from McWane.

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