Antitrust Reform: A Litigation Perspective.

53 Michael Carrier, The Four-Step Rule of Reason, Antitrust, Spring 2019, at 51 ("Between 1999 and 2009, courts dismissed 97 percent of cases at the first stage, reaching the balancing stage in only 2 percent of cases."); As then-FTC Commissioner Thomas Rosch observed in 2010, litigation involving "fast-moving, high-tech markets" does "not fit snugly into the drawn out litigation process that we have in the U.S."91 Or, as one antitrust lawyer described it more colorfully, "[t]he problem with these cases is that they sometimes get to trial at the start of the next geological period."92 In fact, the time needed to bring a case to trial may benefit defendants in consummated merger or conduct cases. That work would inform on-going litigation and could culminate in a set of litigation guidelines that would provide assistance in specific cases much in the way that the horizontal merger guidelines have supplied courts with a framework for analysis. Where potential or nascent competition is important, either in a merger or conduct case, "it can be difficult for governmental or private plaintiffs to prove that nascent or potential rivals are a competitive threat, even when that is in fact the case, simply because these firms, lack a track record showing what they can do."68 But monopolies are not free "to squash nascent, albeit unproven, competitors at will."69 Thus, as two commentators have written, "[t]he proper approach does not require proving...that successful entry in the "but-for" world by the excluded innovator would necessarily or probably have occurred.". [Extracted from the article]