Market Power Without A Large Market Share:

The Role of Imperfect Information and other

"Consumer Protection" Market Failures

Robert H. Lande[^1]

March 8, 2007

There actually are two very different sources of market power in
antitrust cases. The first is traditional market share-based market
power.

Market power in antitrust cases also can come from deception,
significantly imperfect or asymmetric information, unduly large
transaction costs, or from other types of market failures that usually
are associated with consumer protection violations.

However, instead of traditional end-use consumers being harmed, the
victims of this deception or imperfect information are businesses. Since
this can result in harm to competition in entire markets, including
higher prices, and these harms may not be prevented by competition in
the relevant markets, they quite properly can give rise to antitrust
violations.

In antitrust cases, when these "consumer protection" market failures are
present, market power can arise even if no firm has a market share large
enough for a finding of traditional market share based market power.
Although these two manifestations of market power have very different
origins, either type produces the same result. Either can give the firm
possessing it the power to raise prices.

The "consumer protection" type of market power has been a small part of
the antitrust world for decades. It certainly is used from time to time
in mainstream antitrust cases. The purpose of my Testimony will be to
urge that it play an even larger role in the day-to-day world of
antitrust, perhaps almost as large as the role it plays in consumer
protection law.

At the end I will discuss some of the implications that could arise for
antitrust if we grant this source of market power the attention it
deserves. In addition to having an effect on our beliefs as to when
market power may be present, it also could have important effects on
such related antitrust areas as market definition and entry analysis.

I. Market Power Requires A Market Failure.

A. Market Power From Large Market Shares

The conventional definition of market power is usually expressed as "the
power to raise price".[^2] Or, colloquially, one subject to pure
competition takes its prices from the interplay of supply and demand,
while one with market power has some amount of discretion to set its own
price. The key distinction for purposes of my Testimony involves the
issue of from where the discretion arises.

Even a large market share only gives a firm the traditionally-defined
power to raise prices when a significant market failure is present.[^3]
If the market is working well even a firm with a 100% market share might
have no ability to raise prices above the competitive level for a
significant period.[^4]

Theoretically, in a perfect, frictionless world, businesses could merge
to monopoly or meet and fix prices. This would result in a technical
violation of the antitrust laws. But it could not substantially harm
consumer welfare because perfect information among businesses and an
absence of transaction costs would allow some to quickly enter
monopolized or price‑fixed markets and compete away supracompetitive
margins.

What makes antitrust injury possible in these circumstances is the
presence of market failures that are external to consumers.
Imperfections in the marketplace, involving capital flows, time lags,
search costs, faulty information, and sunk costs, can enable a monopoly
or cartel to keep prices elevated for a significant period.[^5]

B. Market Power from "Consumer Protection"

Market Failures

The most common of these fall within five categories: (1) coercion; (2)
undue influence; (3) deception; (4) incomplete or asymmetric
information; or (5) unreliable, uncertain or overly confusing
information.[^6]

This list of "consumer protection" market failures is really not all
that different from the types of market failures that prevent entry to
challenge a monopoly's dominance. However, consumer protection problems
cannot occur absent market failures occurring \"inside the head\" of
ultimate purchasers.[^7] Hypothetical purchasers who are perfectly
informed, rational, and intelligent can never be subject to consumer
protection abuses. Ordinary consumers, however, can have greater
difficulties.

It is crucial to note, however, that corporate officials also can be
victimized by deception or imperfect information. Sometimes this will
only affect that corporation, but occasionally it can hurt competition
in that market as a whole.

C. Can These Constitute Antitrust Violations?

Can deception and these other market failures give rise to antitrust
violations, or should we instead term whatever harms they cause
"consumer protection" problems? It all depends upon whether they distort
the offerings of the market in question.

This is because all antitrust violations have in common the fact that
they all affect or distort the offerings that the market provides. They
change the choices that would be offered to consumers by the functioning
of the free market competition.[^8] Consumer protection violations, by
contrast, detrimentally affect consumers' ability to choose from among
the options provided by the market.[^9] When imperfect information,
deception or coercion distorts the options offered by the market, this
quite properly gives rise to an antitrust violation.

It is crucial to note, however, that these consumer protection
violations, flowing from these "consumer protection" market failures,
can occur even if the firm committing the act in question does not have
a monopoly market share. We prosecute a company that commits consumer
fraud even if its market share is small. We prosecute fraudulent
companies even if 80% of the sellers in their market are honest.[^10]

To show how this already occurs in antitrust, I will briefly discuss
three well known single-firm[^11] cases; *Kodak,*[^12] *Rambus,*[^13]
*and* *Jefferson Parish.*[^14] Each involved an alleged antitrust
violation by a firm that did not, before the violation, have a monopoly
market share as measured conventionally. Each relied upon a market
failure that is more often associated with consumer protection
violations, such as overly complicated information, a mistake or
unexpected change in corporate policy, transaction costs, third party
payments, and/or deception. Each presented allegations which, if true,
could have resulted in antitrust harms.

II\. *Kodak*

*Kodak* is the antitrust case that most prominently stands for the
proposition that market power can arise from information that is
imperfect or overly complicated. *Kodak* also reminds us that just
because businesses are involved we should not assume they always will
possess information perfect enough to ensure a competitive outcome, or
that a market that seems to be competitive, when assessed in terms of
traditional market shares, inevitably will supply the necessary
information to the marketplace in a full and timely manner.

*Kodak* involved the firm's requirement that its customers purchase the
firm's maintenance services to obtain its spare parts.[^15] What made
the Kodak tie-in of special concern was that Kodak was found to have
only 20-23% of the market for sales of copier machines, and thus would
not be considered under normal market share standards to hold market
power.[^16]

A key to the Court's decision was its concern over a possible shift in
Kodak's policy that had been unanticipated by its customers, and also
over consumers' inability to calculate the life-cycle pricing of their
copier repairs and spare parts. Defendant's alleged actions also could
be characterized as deceptive, or close to it, because it violated an
understanding that users would be allowed to handle maintenance in a
certain way over the lifetime of the products.[^17] Due to a lock-in
caused by the transaction costs of switching to a different copier, they
became vulnerable to exploitation from Kodak's tying arrangement.

*Kodak* also is significant because it reminded us that it was possible
for purchasers who were businesses, not traditional end-use consumers,
to be vulnerable to information imperfections and complexities. Just
because businesses are involved we should not assume they always will
possess information perfect enough to ensure a competitive outcome, or
that a market that seems to be competitive when assessed in terms of
traditional market shares inevitably will supply the necessary
information to the marketplace in a full and timely manner.

Kodak also held that switching costs can mean that the time to measure
market power - the ability of the seller of an aftermarket product to
raise prices - sometimes will be after the product is purchased. In
these situations the seller might be found to have market power even if
it only has a modest share of the initial product market. [^18]

III\. *Rambus* and other cases allegedly involving the deception of
standards setting organizations.

A firm that has secured, or knows it is about to secure, a patent on the
intellectual property covered by a standard might be able to
misrepresent (either expressly or by silence) to a standard setting
organization that no such patent exists, thereby inducing the adoption
of a technology that relies on the patent and thereby greatly increases
its value. The firm might be able to wait until the industry has
committed itself to the standard and has become locked in; and then
assert its patent rights.

The FTC's case in *Rambus* involved essentially these allegations.[^19]
The FTC held, in effect, that Rambus was guilty of illegally
monopolizing the relevant markets even though the company might have had
no market power before the deception was made - if market power were
traditionally defined as requiring a huge market share[^20] of a
rigorously defined market.[^21] Moreover, it would have been very
difficult to determine defendant's market share at the time of the
alleged deception because its patents - or perhaps some other firm's
patents - could have become crucial, or could have become worth very
little, depending upon the actions of the standard setting organization.

But even if Rambus' pre-deception market power was uncertain if assessed
under a conventional market share based approach, the FTC found that it
had the power to deceive the standard setting organization in a manner
that kept the market from providing the benefits of competition. In this
way, it gave itself post-deception monopoly power.

IV\. *Jefferson Parish*

*Jefferson Parish v. Hyde*[^22] generalizes the idea that market power
can flow from "consumer protection" market failures because it involved
market failures other than imperfect or deceptive information.

*Jefferson Parish* rejected a finding of market power by a firm with a
30% market share,[^23] holding that this market share was insufficient
despite the existence of market imperfections such as high transaction
costs (the travel time of patients) and "the prevalence of third party
payment for health care costs \[which\] reduces price competition, and a
lack of adequate information".[^24] Even though this case seemed to
establish a 30% market power "safe harbor" in seller cases, it did
establish that market failures other than imperfect information
potentially can be crucial to a Court's market power determination.

V. Overview of Possible Implications

Imperfect information and other transaction costs are everywhere. A
crucial issue, however, is how significant they must be before they can
constitute a "market failure" that should affect antitrust
decisionmaking.[^25] This requires an extremely difficult evaluation -
as does the assessment of traditional, market share based market power.

To the extent they exist significantly, however, imperfect information
and the other "consumer protection" market failures can give firms some
power unilaterally to raise prices above competitive levels. This is
because a firm can to some extent be insulated from hard competition
from its rivals; a firm can to some extent be insulated from entry by
potential entrants, and these factors also can provide a space, cushion,
or isolation around consumers similar to that created by market
share-based market power.[^26]

This cushion - whether between firms and consumers, between rivals, or
between existing firms and potential entrants - can enable the
beneficiary firm to raise prices.[^27] This pricing freedom is the
essence of market power.

If antitrust were to take these concepts significantly more seriously
than it does today, this could have profound effects on the analysis of
market power and related areas.

1\. Market Share requirements for market power could

change.

Kodak had only 20-23% of its relevant market. In today's antitrust
world, of course, it is almost inconceivable that a firm with *double*
this market share would be found to have traditionally defined market
power. Yet, if the allegations in *Kodak* were true, competition in the
market did not protect consumers adequately, and the harms to consumers
were serious. When the market imperfections discussed in this Testimony
are present, ceteris paribus, a lower market share should be required
for a finding of market power or monopoly power.

Another result is that we should be more cautious about establishing
substantial market share based safe harbors in the Merger Guidelines or
Joint Venture Guidelines, and consider using the existing market share
screens more strictly.

2\. Markets could be defined differently.

Imperfect information could create more narrowly defined relevant
markets because it could effectively prevent customers from turning to
certain potential substitutes. Some customers might not know of an
option\'s existence.[^28] If a significant number of potential consumers
of plastic conduit, certain types of student loans, or non- florescent
lightbulbs, were unaware of the existence of a close substitute, perhaps
the close substitute should not be considered to be within the same
relevant product market.

Moreover, some customers might not realize that a certain product is a
cost effective option, and for other customers the transaction costs of
finding another choice - or customers' beliefs as to the size of these
transaction costs - might be so large that the firm in question has some
degree of pricing freedom.

To investigate these questions we should attempt to ascertain the
information about the products in question that actually was in the
minds of potential customers, rivals, and entrants. This will tell us
whether other products effectively function as substitutes. It
introduces consumer behavior and therefore marketing expertise into the
antitrust equation. All this could lead to markets being defined more
narrowly and to larger shares being imputed to certain firms within that
market. This could have the effect of making it more likely that
particular firms will be found to have market power.

3\. Entry analysis could be significantly affected.

Entry that can take place within 2 years is considered

However, when we compute this period, we should not always assume that
would-be entrants instantly spot the profit opportunity and instantly
make the corporate decision to enter. This certainly is not always true.
Sometimes it takes a considerable period before a profit opportunity is
noticed and a corporation makes and decides to implement a decision to
enter a market. Yet, these factors are not considered in the Merge
Guidelines.[^29]

Imperfect information similarly can affect firms' decisions to enter
markets in response to a 5-10% price rise, and firms' perceptions as to
the time required to enter markets. Moreover, the 5-10% test for both
entry and market definition would have to be modified because potential
entrant and customer reactions to a 5-10% price rise would only "count"
if they knew the rise was due to market power. By contrast, perceptions
that prices rose due to increased costs or other factors would allow
firms to increase prices without as much fear of entry or resistance by
powerful buyers.

Suppose potentially competing firms do not realize that prices rose due
to an increase in the market power of the firm in question, but instead
believed prices increased due to cost increases? If they believed the
entire price rise was due to cost increases, they might be very
reluctant to enter. In these markets the information imperfections would
mean that a price increase of more than 2 years due to increased market
power would not cause entry even though the price rise actually was
caused by market power. Thus, the Merger Guidelines "likely" test for
entry could be affected, as well as its "timely" test.

VI Conclusions: The Underutilized Source of Market Power

No plaintiff has won an antitrust case at the Supreme Court in more than
a decade. The expansionist portions of some of the cases I have cited
were discussed in their respective opinions mostly just as
possibilities, moreover, and they largely have been ignored by the lower
courts in recent years.

Nevertheless, consumer protection law\'s assumptions about individuals\'
capabilities, vulnerabilities, and needs should apply to businesses (and
officials from standard setting organizations, and government officials)
as well. Relatively new lines of inquiry should be opened in many
antitrust cases, looking for evidence of information imperfections and
other "consumer protection" types of market failure.[^30]^5^ These
principles have not been forgotten by the antitrust field, of course, as
*Rambus* and related cases demonstrate. But these principles should be
utilized more often.

It would be sound public policy to take the potential of this form of
market power more seriously. Deception, imperfect information and other
"consumer protection" problems, when they have marketwide effects, and
are not likely to be prevented by competition in the relevant market,
should give rise to antitrust violations.

This is in part because they can cause harms to consumer welfare in
addition to the higher prices they cause, including allocative
inefficiency and umbrella effects. Antitrust remedies, including treble
damages, are indeed appropriate for these situations. The single damages
that would be awarded if these cases were tried as consumer protection
violations, fraud, or business torts would provide significantly
inadequate deterrence.[^31] \
\
     For these reasons, as the agencies contemplate future dominant firm
cases, they should give more attention to the possibility that "consumer
protection" market failures might create market power even in relatively
unconcentrated markets and by defendants with relatively modest market
shares.

A more serious consideration of the market failures discussed in this
Statement also would be consistent with the ways we currently approach
potential consumer protection violations. As noted earlier, in these
cases we routinely look for market failures due to such factors as
deception or imperfect information, and we certainly would not decline
to prosecute a fraudulent seller just because it had a small market
share or because most of the firms in its market were honest.

I urge the field to apply these insights more often in antitrust cases
as well. A s the agencies contemplate future dominant firm cases and any
possible consensus Statement over how to deal with single-firm conduct,
they should not exclude the possibility that informational issues and
other "consumer protection" market failures might create market power
despite relatively low market shares.

[^1]: Venable Professor of Law, University of Baltimore School of Law,
    and Director, American Antitrust Institute. The author's e-mail
    address is <rlande@ubalt.edu>. The author is grateful to John
    Connor, Albert Foer, and Thomas Krattenmaker for extremely
    insightful comments, and to Alice Arcieri and J. Andrew Stevens for
    helpful research assistance.

[^2]: See, e.g., NCAA v. Board of Regents, 468 U.S. 85, 109 n.8 (1984).
    By contrast, monopoly power is usually defined as "the power to
    control prices or exclude competition." See United States v. E.I
    duPont de Nemours & Co., 351 U.S. 377, 391 (1956). This testimony
    will not attempt to differentiate market power from monopoly power.
    For a fuller and more precise definition of these terms in general
    and relative to one another *see* Thomas G. Krattenmaker, Robert H.
    Lande & Steven C. Salop, *Market Power and Monopoly Power In
    Antitrust Law*, 76 [Geo. L.J.]{.smallcaps} 241 (1987).

[^3]: ven if some critical market share is reached, of course, the firm
    has the power to raise prices[^32] only if entry is difficult and
    other conditions are met.[^33]

    ^?^ See Neil W. Averitt & Robert H. Lande, *Consumer Sovereignty: A
    Unified Theory of Antitrust and Consumer Protection Law,* 65
    Antitrust L.J. 713 (1997). "A leading scholar of the subject, Edwin
    Mansfield, believes that perfect competition requires four
    conditions: product homogeneity, relatively small buyers and
    sellers, mobile resources, and perfect information. Jack Hirshleifer
    has considered the converse situation and provided a list of three
    possible imperfections that can prevent a market from functioning
    perfectly: imperfect information, time lags, and transaction costs.
    Significant problems in any of these areas can cause competition to
    be suboptimal."\
    \
    "Additional market failures are added to some other lists. These
    further potential problems include coerced decisionmaking, barriers
    to the entry of new firms, circumstances of natural monopoly,
    positive or negative externalities, and situations involving 'public
    goods', 'free riders', 'prisoner\'s dilemmas', 'lemons', and adverse
    selection. Despite disputes over taxonomy, this basic list of
    factors that can plausibly cause competition to become suboptimal is
    relatively noncontroversial."

    "Far more controversial is the question of just how often market
    failures occur and, therefore, how often remedial action under the
    antitrust or consumer protection statutes might be appropriate." Id.
    at 724-26. 

[^4]: Such markets often are termed "contestable markets". As the
    American Antitrust Institute noted in its views about contestability
    in its Statement on Concentration: "There is reason to doubt the
    empirical significance of the strongest version of the 'contestable
    market' theory, which holds that potential entry can cause even a
    monopolist benefiting from significant economies of scale to price
    competitively. This theory wrongly assumes both that entry requires
    no significant sunk costs (i.e., the entrant's expenditures on
    inputs can be fully recovered if entry fails) and that the
    monopolist's price response to entry is delayed." See
    <http://www.antitrustinstitute.org/archives/files/296.pdf>

[^5]: See Averitt & Lande, supra note 5, at 730-33.

[^6]: A firm also can obtain the ability to raise prices from the types
    of market failures most often associated with consumer protection
    violations.[^34] See Averitt & Lande, supra note 5, at 733.

[^7]: Id. at 729-34.

[^8]: Id. at 718-720.

[^9]: ^?^ Id. at 720-722.

[^10]: It is not controversial to note that consumers can be victimized
    by routine fraud even if 95% of the sellers in a market are honest.
    However, if the market generally is working well and if 95% of the
    companies in it are honest, the consumer protection function could
    be required less often than if only 5% of the firms were honest.

[^11]: The same thing should be done - and is done - when these
    "consumer protection" market failures give rise to antitrust
    violations. This happens even if the firms in question do not have a
    traditionally large market share at the time of the alleged
    violation. For a discussion of collusive cases involving similar
    information and search cost issues, see Robert H. Lande & Howard P.
    Marvel, *The Three Types of* *Collusion: Fixing Prices, Rivals, and
    Rules*, 2000 Wisc. L. Rev. 941, 950-77 (2000).

[^12]: Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451
    (1992).

[^13]: ^?^ Rambus, Inc., FTC Docket No. 9302 (2006).

[^14]: ^?^ Jefferson Parish v. Hyde, 466 U.S. 2 (1984).

[^15]: *See* Eastman Kodak Co. v. Image Technical Services, Inc., 504
    U.S. 451 (1992). Kodak had changed its photocopier service policies
    around 1985, in an effort to limit the growth of independent service
    organizations. Customers who had bought copiers before the policy
    change were forced against their expectations to pay higher prices
    as a result of this new tie-in because they were already locked in
    to using Kodak machines. For a more detailed discussion of this case
    see Robert H. Lande, *Chicago Takes It on the Chin: Imperfect
    Information Could Play a Crucial Role in the Post-*Kodak *World*, 62
    [Antitrust L.J.]{.smallcaps} 193 (1993).

[^16]: Kodak's market share was, not surprisingly, in dispute. The Court
    found, however, that it had 23% of the market for new copiers and
    20% of the market for new micrographic equipment. See *Image
    Technical Serv., Inc. v. Eastman Kodak* *Co.*, 903 F.2d 612, 616,
    n.3 (9th Cir. 1990); *Image Technical* *Serv., Inc. v. Eastman Kodak
    Co.,* 1993 WL 313162, \*1 (N.D.Cal.)(Not reported in F. Supp.).

[^17]: This arguable deception by defendant is so important that lower
    courts have found that full disclosure of such terms can immunize a
    firm from Kodak liability. *See*, e.g., Merck Medco Managed Care v.
    Rite Aid Corp., 1999 WL 691840, \*6-\*9 (4th Cir. 1999); Cant Strip
    Corp. v. Schuller Int'l, Inc. 1995 WL 767805, \*3-\*5 (D.Ariz 1995);
    Collins v. Int'l Dairy Queen, 980 F.Supp. 1252, 1254-55 (1997);
    Alexander v. Phoenix Bond & Indem. Co., 149 F.Supp.2d 989, 998-99
    (2001).

[^18]: The FTC has brought a number of consumer protection cases
    involving post-hoc contract breaches. Pursuing a tie-in or other
    antitrust matter in these situations may be appropriate in cases
    where consumers have been injured by faulty information even if
    defendants possess no traditionally-assessed market share-based
    market power at the time of the violation. *See* Orkin Exterminating
    Co., 108 F.T.C. 263, 347, 368 (1986) (company breached "lifetime"
    service contract by raising annual renewal fees when it had promised
    not to do so); *cf.* FTC v. Certified Merchant Services, Civ. Action
    No. 4:02cv44, Complaint 28-31 (E.D. Tex.) (unfairness authority
    invoked to keep small businesses from being held subject to
    contracts for credit card processing services on unfavorable terms,
    when the adverse terms had been improperly added to the contracts
    after signature), *available at*
    http://www.ftc.gov/os/2002/02/cmscmplnt.pdf. Of course, if there is
    merely a policy change, but no reasonable understanding of any
    promise that the policy would not be changed, then there is no
    violation.

[^19]: Rambus, Inc., FTC Docket No. 9302 (2006). *See* Press Release,
    Federal Trade Comm'n, FTC Finds Rambus Unlawfully Obtained Monopoly
    Power, Aug. 2, 2006, *available at*
    http://www.ftc.gov/opa/2006/08/rambus.htm. The Commission pursued a
    somewhat similar theory against Unocal. *See* Union Oil Co., FTC
    Docket No. 9305. *Unocal* involved charges that the patent-holding
    firm deceived a unit of the California state government as well as
    other industry participants. Unocal eventually agreed to release the
    relevant patents to the public as part of a settlement with the FTC,
    in the context of the firm's acquisition by Chevron. *See* Press
    Release, Federal Trade Comm'n, Dual Consent Orders Resolve
    Competitive Concerns About Chevron's \$18 Billion Purchase of
    Unocal, FTC's 2003 Complaint Against Unocal (June 10, 2005),
    *available at* http://www.ftc.gov/opa/2005/06/chevronunocal.htm.

[^20]: A monopolization violation usually requires that defendant
    possess at least 60% of a rigorously defined market. See Robert H.
    Lande, *Are Antitrust "Treble Damages" Really Single* *Damages*? 54
    [Ohio St. L.J.]{.smallcaps} 115, 149-51 (1993), showing that the
    average monopolist between 1890 and 1992 had between a 75% and 85%
    market share, with almost none having less than a 60% share. By
    contrast, however, monopsony power, on the buyer side, may occur at
    lower levels of concentration. See Robert H. Lande, *Beware Buyer
    Power*, [Legal Times]{.smallcaps}, July 12, 2004.

[^21]: Some thought that the market power and market share requirements
    of monopolization were unclear in, for example, the *Dell Computer*
    case *See* Dell Computer, 121 F.T.C. 616, 632 (1996) (Azcuenaga,
    Comm'r, dissenting) ("the majority fails to identify the relevant
    market in which market power assertedly was 'conferred'").

[^22]: 466 U.S. 2 (1984).

[^23]: Id. at 26.

[^24]: Id. at 27. The Court noted: "East Jefferson\'s market share alone
    was insufficient as a basis to infer market power, and buttressed
    its conclusion by relying on \"market imperfections\" that permit
    petitioners to charge noncompetitive prices for hospital services:
    the prevalence of third party payment for health care costs reduces
    price competition, and a lack of adequate information renders
    consumers unable to evaluate the quality of the medical care
    provided by competing hospitals. While these factors may generate
    \"market power\" in some abstract sense, they do not generate the
    kind of market power that justifies condemnation of tying."
    (Footnotes omitted.)

    Omitted footnote 44 reads: "The Court of Appeals acknowledged that
    absent these market imperfections, there was no basis for applying
    the per se rule against tying. The contract at issue here involved
    only one hospital out of at least twenty in the area. Under the
    analysis applied to a truly competitive market, appellant has failed
    to prove an illegal tying arrangement.\" Id. at 1566.

    Omitted footnote 45 reads: "Congress has found these market
    imperfections to exist."

[^25]: When is information imperfect enough to affect the choices of a
    large percentage of customers and detrimentally affect competition
    in a market? Since information is almost never perfect, this matter
    of degree can be of the utmost importance.

[^26]: For an extended discussion of these issues see Robert H. Lande &
    Howard P. Marvel, *The Three Types of* *Collusion: Fixing Prices,
    Rivals, and Rules*, 2000 Wisc. L. Rev. 941 (2000).

[^27]: In all these situations the firms involved still compete, its
    customers try to get the best deals, and other firms still seek to
    enter. But the firms compete less effectively, the customers search
    less effectively, and entry becomes less likely. To the extent these
    tasks are made more difficult by "consumer protection" market
    failures, prices can rise. The isolation or cocoon has the same
    effects that would arise from traditional market share based market
    power. Id.

[^28]: Of course, sometimes customers who are good shoppers can drive
    out fraudulent sellers and in other ways effectively help poor
    shoppers.

[^29]: by the Merger Guidelines to be relatively easy and short
    term.[^35] Id. at Sections 1 and 3.

[^30]: ^35^ Predatory pricing may be impossible without imperfect
    information. See Richard O. Zerbe, Jr. & Donald S. Cooper, *An
    Empirical and Theoretical Analysis of Alternative Predation Rules*,
    61 [Tex. L. Rev.]{.smallcaps} 655 (1982). Zerbe & Cooper demonstrate
    that to the extent we believe in the effects of information
    imperfections, we are more likely to find that predation is possible
    and likely.

[^31]: See Robert H. Lande, *Are Antitrust "Treble"* *Damages Really
    Single Damages?* 54 Ohio State L.J. 115 (1993). This article
    demonstrates that antitrust's co-called "treble" damages, when
    viewed correctly and in light of optimal deterrence, really are only
    approximately single damages. A fortiori, damages that were only 1/3
    as large as antitrust damages would provide substantially inadequate
    deterrence.