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Antitrust Liability For Joint Ventures

By W. Stephen Smith
May 30, 2006

The term 'joint venture' encompasses a wide range of business combinations, some of which are simply contractual agreements between independent parties, others of which involve the creation of new entities through consolidation, and some of which involve both integration and contractual agreements. Because joint ventures comprise such a diverse array of business structures, they often defy easy characterization for antitrust purposes: Is a venture best viewed as a merger? A price-fixing agreement? Something in between? This characterization problem contributed to significant confusion in the courts over the proper scope of antitrust liability for joint ventures.

At one time, courts routinely declared unlawful a variety of joint ventures, many of which were plainly pro-competitive. The Supreme Court's decision in Texaco, Inc. v. Dagher, 126 S.Ct. 1276 (2006), clarifies the application of the antitrust laws to joint ventures, and narrows the scope of potential liability for these types of business combinations.

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