There has already been considerable speculation that the Supreme Court’s decision in Discon may, in the words of one commentator, '[undercut] recent FTC and DoJ thinking in related areas and [may bolster] defenses against claims in many situations that have fomented private antitrust litigation in recent years.' For example, the decision clearly undercuts attempts to broaden the per se boycott rule beyond the rather narrow boundaries of a horizontal conspiracy. The decision may also call into question recent efforts by the government antitrust agencies to base their antitrust investigations more on a presumption of harm rather than actual proof of damage to the competitive process. We can certainly expect considerable argument and numerous lower court decisions concerning the exact imeaning and implications of Discon.

Ronan P Harty
Davis, Polk & Wardwell
New York City