Boston College Law Review Volume 51|Issue 4 Article 1 9-1-2010 IP and Antitrust: Reformation and Harm Christina Bohannan University of Iowa College of Law, [email protected] Herbert Hovenkamp University of Iowa College of Law, [email protected] Follow this and additional works at:http://lawdigitalcommons.bc.edu/bclr Part of theAntitrust and Trade Regulation Commons, and theIntellectual Property Law Commons Recommended Citation Christina Bohannan and Herbert Hovenkamp,IP and Antitrust: Reformation and Harm, 51 B.C.L. Rev. 905 (2010), http://lawdigitalcommons.bc.edu/bclr/vol51/iss4/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please [email protected]. IP AND ANTITRUST: REFORMATION AND HARM Christina Bohannan* Herbert Hovenkamp** Abstract: Antitrust and intellectual property (“IP”) law both seek to im- prove economic welfare by facilitating competition, and investment in in- novation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, anti- trust and IP are on very different roads to reform. Antitrust reform began in the late 1970s and is largely complete. Today, patent law has begun its own reform journey, but it is in a much earlier stage. The U.S. Supreme Court’s recent decision in Bilski v. Kappos did not reform patent law sig- nificantly, however, some of its language may lead to closer examination of some method patent applications. Unfortunately, the outlook for copy- right reform is bleaker. An important component of antitrust reform has been the development of a concept of harm that effectuates the underly- ing policy of making markets more competitive. In its 1977 decision in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., the Supreme Court largely ig- nored the language of an expansive antitrust damages provision that ap- parently gives private plaintiffs a remedy for every injury caused by an an- titrust violation. Rather, the Court said, harm is cognizable only when it threatens to make markets less competitive. We propose a concept of “IP injury” that limits IP remedies to situations in which the IP holder has suf- fered or is likely to suffer harm sufficiently linked to the purpose of IP law, which is to incentivize innovation. As in antitrust, reformation in IP is more likely to come from the judiciary and not from Congress. © 2010 Christina Bohannan & Herbert Hovenkamp. The authors thank the Ewing Marion Kauffman Foundation for its generous financial support. We also appreciate help- ful comments from Professors John Golden, Mark Lemley, John Reitz and Gerald Wet- laufer, from participants in the Colloquium on Innovation Policy at NYU law school led by Professors Rochelle Dreyfuss and Harry First, where most of these ideas were initially pre- sented in March, 2009, participants in a faculty seminar at Notre Dame University Law School in April, 2009, and participants in a faculty seminar at the University of Florida Law School in February, 2010. * Professor of Law, University of Iowa College of Law. ** Ben V. & Dorothy Willie Professor, University of Iowa College of Law. 905 906 Boston College Law Review [Vol. 51:905 Introduction No legal policies are more important for innovation, competition and economic development than the antitrust and intellectual property (“IP”) laws. Both antitrust and IP law have wandered off course, how- ever, subordinating public-regarding concerns for competition and in- novation to interest group demands. Today they are on very different paths to reform. Antitrust’s decades-long period of isolation, redefini- tion, and retrenchment is largely completed. The reforms that are not yet finished belong to the IP laws, particularly patent and copyright, the two bodies of IP law expressly authorized by the Intellectual Property Clause of the Constitution.1 During the middle of the twentieth cen- tury, antitrust policy lost much of its concern with economic competi- tion and started protecting less efficient small businesses from the lower costs of larger firms.2 Then, beginning in the late 1970s, the Su- preme Court moved antitrust law in a new direction, toward the protec- tion of consumers.3 By the same token, patent and copyright law have lost their focus on facilitating the type and amount of innovation needed to benefit consumers and turned toward the protection of rights holders, often at the expense of economic progress.4 The linkage of IP and competition policy is hardly novel.5 But our concern here is not to apply established antitrust doctrine in IP- intensive areas. Rather, we try to develop the basis for a common legal theory for fostering innovation and growth. Identifying the appropriate scope of IP protection is as much a question of competition policy as of patent or copyright policy. Overly broad IP rights or infringement doc- trines that are too lax about proof of harm serve to create unjustified regions of behavior that are protected from competition, thereby threatening innovation. In very much the same way, excessive enforce- ment of the antitrust laws without concern about competitive injury protects firms from competition and undermines the incentive to in- novate. In both cases, consumers are the victims. In both antitrust and IP, meaningful reform requires two things. First, substantive doctrine must be revised to bring the law into align- 1 See U.S. Const. art. I, § 8, cl. 8. 2 See Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution 1 (2005). 3 See id. at 2. 4 See Christina Bohannan, Copyright Harm, Foreseeability, and Fair Use, 85 Wash. U. L. Rev. 969, 969 (2007). 5 See generally Herbert Hovenkamp et al., IP and Antitrust: An Analysis of Anti- trust Principles Applied to Intellectual Property Law (2d ed. 2010). 2010] IP and Antitrust: Reformation and Harm 907 ment with the underlying policy. Better substantive law, however, is not a complete answer. By their nature, both antitrust and IP law continu- ally confront phenomena in areas that are poorly understood, and where legal remedies are likely to do more harm than good. Second, antitrust and IP law need a new focus on the degree and kind of harm required for a violation. As the Supreme Court has discov- ered through many years of interpreting the antitrust laws in private plaintiff actions, antitrust is complex and true reform is lurching, piecemeal and often elusive.6 One way to avoid the pitfalls created by ambiguous and complex substantive law is to ensure that the harm that is claimed is consistent with the underlying purpose of those laws.7 For example, predicting the economic consequences of a merger is ex- traordinarily difficult, and the chance of error is correspondingly high.8 But if a plaintiff is complaining that a merger caused more rather than less competition in a market, why bother with the difficult substantive analysis? The very nature of the plaintiff’s claim tells us that we do not want to condemn this particular merger, at least not for the reason that the plaintiff claims. As we argue in Part V, we can often address prob- lems of IP overreaching and complex and ambiguous doctrine by simply avoiding intractable questions of substance. Rather, courts need to ask more frequently whether the type of harm of which the plaintiff com- plains is sufficiently related to the underlying goals of IP laws, which can be defended only on the grounds that they encourage innovation. We begin in Part I by giving an account of antitrust’s journey to redemption and of how reform was accomplished largely by the judici- ary—in apparent conflict with a statute that seemed both clear and in- flexible.9 Part II then examines the state of reform in IP laws generally10 before turning to specific issues involving patents in Part III,11 and copyright in Part IV.12 Finally, in Part V we urge courts to develop the concept of “IP injury,” similar to the concept of “antitrust injury” in the 6 See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 907 (2007) (over- ruling century of precedent and applying rule of reason to resale price maintenance); State Oil Co. v. Khan, 522 U.S. 3, 22 (1997) (adopting similar, maximum resale price main- tenance). 7 Cf. Bohannan, supra note 4, at 1031. 8 On the need for simplifying assumptions and prophylactic rules in merger analysis, see 4 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 905, at 30 (3d ed. 2009). 9 See infra notes 14–51 and accompanying text. 10 See infra notes 52–147and accompanying text. 11 See infra notes 148--440 and accompanying text. 12 See infra notes 441--496 and accompanying text. 908 Boston College Law Review [Vol. 51:905 antitrust laws, which links the type of harm that a plaintiff must show to the underlying purpose of those laws.13 True IP reform requires both a reconsideration of its substance and the formulation of a theory of harm that is linked to the underlying goals of those laws. Our evaluation of antitrust, patent, and copyright law leads us to conclude that courts are far more likely than Congress to be the en- gines of true reform. The revolution in antitrust was undertaken almost exclusively by the courts, in the face of a clear and aggressive statute that would seem to make a strenuous harm requirement impossible. The transformation that is currently occurring in patent law is also very largely the work of the Supreme Court. Although the cleansing of the Copyright Act remains mainly in the future, nothing gives us hope that the needed reforms will come from Congress; therefore, the courts must act to reform this area of the law as well. I. The Reformation of Antitrust Policy The story of antitrust reform is well known.14 The half-century pe- riod that ended in the late 1970s had seen many antitrust infidelities, mainly from expansion that today seems unprincipled, given that injury to competition was so often absent. Among these was the doctrine that mergers in highly competitive markets should be condemned if they permitted the post-merger firm to undersell smaller rivals;15 the Utah Pie doctrine that recent entrants into a market could not use aggressive pricing against a dominant firm there if they were charging higher prices somewhere else;16 the doctrine that vertical non-price restraints should be unlawful per se;17 the doctrine that tying arrangements should be unlawful even if the seller lacked serious market power and the tie excluded no one;18 and the doctrine that purely vertical agree- 13 See infra notes 497--558 and accompanying text. 14 See Hovenkamp, supra note 2, at 1–2. 15 See generally FTC v. Procter & Gamble Co., 386 U.S. 568 (1967) (condemning a merger because it would create economies in advertising); United States v. Von’s Grocery Co., 384 U.S. 270 (1966) (stating a similar proposition); Brown Shoe Co. v. United States, 370 U.S. 294 (1962) (condemning a merger because the post-merger firm would be able to undersell smaller stores). 16 See generally Utah Pie Co. v. Cont’l Baking Co., 386 U.S. 685 (1967) (finding it unlaw- ful for firms operating in many markets to undersell a dominant firm in its local market). 17 See United States v. Arnold, Schwinn & Co., 388 U.S. 365, 382 (1967) (explaining that vertical non-price restraints are unlawful per se), overruled by Cont’l T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 57 (1977) (explaining that vertical non-price restraints should be subjected to rule of reason). 18 See Int’l Salt Co. v. United States, 332 U.S. 392, 396 (1947) (tying of patented prod- uct presumptively unlawful), overruled by Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 2010] IP and Antitrust: Reformation and Harm 909 ments maintaining either maximum or minimum resale prices were unlawful per se.19 In this period, antitrust law was substantially overde- terrent. That is, it condemned a good deal of conduct that was pro- competitive and in the process forced consumers to pay higher prices. What went wrong with antitrust following World War II was not all that different from what is wrong with the IP laws today. In both areas the legal policy became disconnected from its articulated goals and be- gan pursuing other ends. Antitrust shielded small businesses from competition that would have benefitted consumers. Similarly, IP law expanded entitlements for the benefit of patent and copyright holders, often at the expense of innovation, which always relies on the work of predecessors as well as a robust public domain. The ultimate victims, once again, were consumers. In the case of antitrust, people initially placed the blame for this disconnection on the Supreme Court—something that Robert Bork and Ward Bowman did forcefully in their disturbing 1965 article, The Crisis in Antitrust, and that Bork expanded thirteen years later in The Antitrust Paradox.20 More recently, the tendency has been to blame private plain- tiffs and the private treble damages enforcement system.21 In reality, however, Congress and the government antitrust enforcement agencies were behind most of it. For example, the 1967 U.S. Supreme Court de- cision in United States v. Arnold, Schwinn & Co. was an aggressive decision that condemned manufacturer-imposed territorial restrictions because they were restraints on alienation, not because they had any impact on competition.22 In 1962, the U.S. Supreme Court, in Brown Shoe Co. v. United States, condemned a merger because it injured smaller rivals, al- 28, 46 (2006) (asserting that there is no presumption of market power from patented tying product). 19 See Albrecht v. Herald Co., 390 U.S. 145, 154 (1968) (holding that maximum resale price maintenance is unlawful per se), overruled by Khan, 522 U.S. at 22 (holding that maximum resale price maintenance is to be addressed under rule of reason); Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S. 373, 409 (1911) (holding that minimum resale price maintenance is unlawful per se), overruled by Leegin, 551 U.S. at 907 (holding that minimum resale price maintenance is addressed under rule of reason). 20 See Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself 4 (1978); Robert H. Bork & Ward Bowman, Jr., The Crisis in Antitrust, 65 Colum. L. Rev. 363, 375 (1965). 21 See, e.g., William J. Baumol & Janusz A. Ordover, Use of Antitrust to Subvert Competition, 28 J.L. & Econ. 247, 263 (1985) (explaining that antitrust protects inefficiency for the benefit of small business); Frank H. Easterbrook, Predatory Strategies and Counterstrategies, 48 U. Chi. L. Rev. 263, 314–15 (1981) (stating a similar proposition); Edward A. Snyder & Thomas E. Kauper, Misuse of the Antitrust Laws: The Competitor Plaintiff, 90 Mich. L. Rev. 551, 598 (1991) (making a similar argument). 22 See 388 U.S. at 381–82. 910 Boston College Law Review [Vol. 51:905 beit by reducing prices to consumers.23 The plaintiffs in these cases, however, were not “Pop’s Bike and Trike” or “Sally’s Little Shoe Shop.” In both cases, as well as other big Supreme Court decisions of this vin- tage, the plaintiff was the U.S. government.24 The Supreme Court rarely did more than give the government what it asked for.25 Yes, the Supreme Court did condemn many mergers precisely because they created effi- ciencies that might injure competitors, but it did so, at least in large part, because that is what the Department of Justice’s Antitrust Division and the Federal Trade Commission wanted.26 For example, speaking through Archibald Cox as Solicitor Gen- eral, the government identified low consumer prices as the primary evil brought about by the merger of Brown Shoe and Kinney: [T]he integration of manufacturer-retailer Brown with the large Kinney retail organization will seriously aggravate the dif- ficulties that independent retailers are already having in com- peting with the substantial and ever-expanding retail chains. The manufacturer-owned or controlled retail outlet can sell its own product at a significantly lower price than the noninte- grated independent retailer can obtain for a comparable prod- uct. . . . The conclusion was inevitable that the advantages the merged company would have over its smaller retailing competi- tors would be so great as to threaten to become decisive.27 Even as early as 1947, in International Salt Co. v. United States, the U.S. Supreme Court granted the government’s request to condemn a tying arrangement without any showing of either market power in the tying product or significant harm in the market for the tied-up salt.28 That is, the government showed no injury to competition whatsoever but be- lieved it was wrong for a patentee to insist that users of its patented ma- chine also use its own salt, a common commodity not capable of being monopolized.29 23 See 370 U.S. at 346 (addressing a government suit to break up a merger). 24 See Schwinn, 388 U.S. at 367; Brown Shoe, 370 U.S. at 296. 25 See Schwinn, 388 U.S. at 381–82; Brown Shoe, 370 U.S. at 346. 26 See Brown Shoe, 388 U.S. at 296; see also Procter & Gamble, 386 U.S. at 580–81 (con- demning a product-extension merger, a type of conglomerate acquisition, because it would lead to economies in marketing that would enable P&G to undersell rivals). See generally 4 Areeda & Hovenkamp, supra note 8, ¶ 905, at 30. 27 Brief for the United States at 48, Brown Shoe, 370 U.S. 294 (No. 4). 28 See 332 U.S. at 401 (accepting government’s argument that power and anticompeti- tive effects be presumed from existence of a patent). 29 See id. 2010] IP and Antitrust: Reformation and Harm 911 As for private plaintiffs, they assuredly have a tendency to push the envelope, but in most subsequent private actions they asked the federal courts to do no more than give them what had already been given to the government.30 For example, the plaintiffs in the 1977 case Bruns- wick Corp. v. Pueblo Bowl-O-Mat, Inc. had simply requested that the lower court follow Brown Shoe by protecting their small bowling alley from a rival that threatened to become more robust and efficient as a result of a merger.31 The U.S. Court of Appeals for the Third Circuit obliged, with a detailed analysis of the Brown Shoe decision.32 The court found that the main difference in the present case was that the bowling alley market in Pueblo, Colorado, was far more concentrated than the shoe market in Brown Shoe.33 In reversing, the Supreme Court created the “antitrust injury” doctrine, discussed below, which stood the rationale of Brown Shoe on its head.34 Dating the beginning of antitrust reform is difficult. It may have been 1957, when Ward Bowman exploded the traditional leverage the- ory of tying arrangements, which had suggested that the tying of a mo- nopoly product to a competitive product could turn one monopoly into two.35 Perhaps it was 1958, when John McGee debunked the the- ory that Standard Oil had engaged in predatory pricing,36 or 1969, 30 See, e.g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 480 (1977). 31 See id. 32 See NBO Indus. Treadway Cos. v. Brunswick Corp., 523 F.2d 262, 269–70 (3d Cir. 1975). 33 See id. at 270. 34 See Brunswick, 429 U.S. at 480; infra notes 531--543 and accompanying text. 35 See generally Ward S. Bowman, Jr., Tying Arrangements and the Leverage Problem, 67 Yale L.J. 19 (1957) (debunking notion that tying a monopoly product to a competitive product enables a firm to turn one monopoly into two). On the use of the leveraging theory in patent misuse cases, see Christina Bohannan, IP Misuse as Foreclosure, 96 Iowa L. Rev. (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1474407. For a re- cent attempt to revitalize the leverage theory, see Einer Elhauge, Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, 123 Harv. L. Rev. 397, 400 (2009). For a critique showing that the great majority of ties both increase welfare and benefit consumers, see Erik N. Hovenkamp & Herbert Hovenkamp, Tying Arrangements and Antitrust Harm, 52 Ariz. L. Rev. (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1443284. 36 See John McGee, Predatory Price Cutting: The Standard Oil (N.J.) Case, 1 J.L. & Econ. 137, 168 (1958) (arguing that Standard Oil did not engage in predatory pricing, but was simply more efficient than its rivals). McGee’s work was recently called into question by James A. Dalton and Louis Esposito. See James A. Dalton & Louis Esposito, Predatory Price Cutting and Standard Oil: A Re-examination of the Trial Record, 22 Res. L. & Econ. 155, 189 (2007) (re-examining the trial record and finding numerous instances of predation, in conflict with McGee’s conclusions); see also Ron Chernow, Titan: The Life of John D. Rockefeller, Sr. 113–17, 144–47, 202–25, 251–58 (1998) (documenting various rebate agreements between Standard Oil and the railroad). 912 Boston College Law Review [Vol. 51:905 when the Neal Report on the antitrust laws was released, provoking a sharp reaction that rejected its interventionist recommendations.37 The first major signpost of reform may have been in 1975, when Phillip E. Areeda and Donald F. Turner published their law review article advo- cating strict, cost-based standards for predatory pricing,38 or 1978, when they published the first three volumes of the Antitrust Law trea- tise.39 Or maybe it began in 1976, when then-professor Richard A. Pos- ner published the first edition of his monograph, Antitrust Law,40 or 1978, when Robert Bork popularized Chicago School ideas in his influ- ential book, The Antitrust Paradox.41 Perhaps a better candidate is 1981, when President Ronald Reagan appointed William F. Baxter as head of the Antitrust Division.42 In any event, antitrust reform began largely in academic literature and then moved into government enforcement and the courts. Today, the antitrust landscape differs so much from the view of Brown Shoe that one could barely recognize it from that vantage point. The reformation of antitrust involved not only the development of a coherent theory of harm related to the underlying goals of the antitrust laws, but also a major revision in substance.43 Five years after Brunswick, the Supreme Court imposed significant restrictions on antitrust stand- ing that limit private enforcement to people who suffer demonstrable injury as a result of decreased competition.44 In two important deci- sions twenty years apart, the Court greatly strengthened pleading and proof requirements, imposing harsh standards for summary judgment 37 See White House Task Force Report on Antitrust Policy, reprinted in Anti- trust L. & Econ. Rev., Winter 1968–1969, at 11; see also Herbert Hovenkamp, The Neal Report and the Crisis in Antitrust, Competition Pol’y Int’l, Spring 2009, at 217 (chroni- cling harsh reaction to Report that advocated aggressive use of antitrust laws). 38 See Phillip Areeda & Donald F. Turner, Predatory Pricing and Related Practices Under Sec- tion 2 of the Sherman Act, 88 Harv. L. Rev. 697, 733 (1975) (advocating restrictive cost-based tests for predatory pricing). 39 See generally Phillip E. Areeda & Donald F. Turner, Antitrust Law (1978) (call- ing for more restrictive rules for antitrust enforcement, particularly by private plaintiffs). 40 See Richard A. Posner, Antitrust Law: An Economic Perspective 3–7 (1976) (making a similar argument). 41 See generally Bork, supra note 20. 42 See Thomas J. DiLorenzo, The Origins of Antitrust: An Interest-Group Perspective, 5 Int’l Rev. L. & Econ. 73, 74 (1985). 43 See 2A Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 335d, at 66– 70 (3d ed. 2007). 44 See Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 542–44 (1983) (applying a restrictive test for antitrust standing to sue). 2010] IP and Antitrust: Reformation and Harm 913 in its 1986 Matsushita Electric Industrial Co. v. Zenith Radio Corp. decision45 and strict pleading standards in its 2007 Bell Atlantic Corp. v. Twombly decision.46 In addition, the Supreme Court made exclusionary prac- tices much more difficult to prove, with holdings on predatory pricing in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. in 199347 and strict cost-based pricing tests in Weyerhaeuser Co. v. Ross-Simmons Hard- wood Lumber Co. in 2007.48 These rules largely followed the Areeda and Turner recommendations of 1975 and 1978. Similarly, in 2004, the Su- preme Court considerably narrowed the law of unilateral refusals to deal by dominant firms.49 It has completely rewritten the law of vertical restraints, removing such common law concerns as restraints on alien- ation, which have nothing to do with competition policy.50 More gener- ally, the courts have greatly reduced the use of per se rules, with their automatic inference of competitive harm, except in cases of naked col- lusion. Rather, they have required plaintiffs to prove market power and anticompetitive effects.51 II. IP: Reformation That Has Barely Begun IP law today is in a place closely resembling antitrust policy in the 1960s. As with antitrust, the argument that IP law has become too de- tached from its central concern with protecting innovation has been 45 See 475 U.S. 574, 596–97 (1986) (adopting strict standard for summary judgment in antitrust case); see also 2 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 308, at 133–39 (3d ed. 2007). 46 See 550 U.S. 544, 570 (2007) (adopting strict standard for pleadings alleging unlaw- ful antitrust conspiracy); see also 2 Areeda & Hovenkamp, supra note 45, ¶ 307, at 83–84. 47 See 509 U.S. 209, 222, 223, 224, 232, 243 (1993) (adopting strict rules for predatory pricing cases and citing Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶¶ 711, 714, 720c (Supp. 1992)). 48 See 549 U.S. 312, 325–26 (2007) (adopting strict cost based rules for predator pur- chasing); see also 3 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 747, at 454–55 (3d ed. 2008). 49 See Verizon Commc’ns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 415–16 (2004) (narrowing scope of antitrust law on unilateral refusals to deal); see also 3B Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 774, at 219 (3d ed. 2008). 50 See Leegin, 551 U.S. at 907 (applying rule of reason to resale price maintenance); Ill. Tool Works, 547 U.S. at 46 (overruling presumption that patented tying product confers sufficient market power to make a tie unlawful); Khan, 522 U.S. at 22 (applying rule of reason to maximum price fixing); Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 31–32 (1984) (tightening up standards for tying arrangements); GTE Sylvania, 433 U.S. at 57 (applying rule of reason to vertical non-price restraints). 51 See, e.g., Cal. Dental Ass’n v. FTC, 526 U.S. 756, 781 (1999) (adopting lenient rules for evaluating price-affecting joint conduct).