coordinate a restraint which is either imposed or enforced
horizontally. Tying arrangements are per se unlawful and
are subject to a two prong test: (a) The party effectuating
the tie must possess sufficient economic power; and (b)
it must be demonstrated that the arrangement has a “not
insubstantial” effect on the market. Per se unlawful tying
arrangements may be subject to certain affirmative
defenses.
The exceptions to the rule that illegal price restraints
are per se invalid are generally subsumed under the
Colgate doctrine. United States v. Colgate & Co., 250 U.S.
300 (1919). That principle permits a manufacturer to
suggest a resale price coupled with a prior announcement
of a “refusal to deal” with any party not abiding by the
suggested price.
In State v. Arace Bros., 230 N.J. Super. 22 (App. Div.
1989), the Deputy Attorney General who presented the
matter to the grand jury could not have continued access
to grand jury materials without first obtaining court
order upon showing of particularized need. However, the
Deputy Attorney General could simultaneously
participate in both civil and grand jury investigations of
suspected antitrust violations.
In State v. Scioscia, 200 N.J. Super. 28 (App. Div.),
certif. denied, 101 N.J. 277 (1985), the defendant argued
that solid waste collectors are public utilities subject to
the jurisdiction of the Board of Public Utilities and, as
such, were exempt from prosecution for antitrust
violations. The court held that the purpose of the public
utilities exemption to the Antitrust Act was to avoid a
utility being faced with conflicting conduct standards
under the antitrust laws and the public utility laws. Since
the Board of Public Utilities did not authorize or permit
the conduct alleged in the indictment, it would serve no
valid public purpose to confer antitrust immunity on
these defendants.
As a result of an antitrust indictment, three
defendants, garbage collectors, in State v. New Jersey Trade
Waste Assn. and County of Somerset, 194 N.J. Super. 90
(1984), certif. denied, 97 N.J. 688 (1985), agreed to
plead guilty to monopolization in violation of the Solid
Waste Utility Control Act, N.J.S.A. 48:13a-10(A). In
addition to incarceration, the court imposed fines which
totaled $130,000. The trial court ruled that, pursuant
to N.J.S.A. 2C:46-4b(1), Somerset County was entitled
to the fines since its claim was superior to that of the State
under N.J.S.A. 56:9-19. The Appellate Division
reversed, finding the State’s claim to be superior. The fact
that the defendants were allowed to plead guilty to a non-
antitrust offense did not affect the results, since the fines
levied were “derived from litigation instituted by the
Attorney General under [the Antitrust Act].”III. CIVIL CASES
Generally speaking, the same legal principles apply
under the Antitrust Act whether the remedies sought are
civil or criminal. Therefore, the following New Jersey and
United States Supreme Court civil cases may be of some
assistance.Fraser v. Bovino, 317 N.J. Super. 23 (App. Div.
1998), certif. denied, 160 N.J. 476 (1999); Shapiro v.
Middlesex County Mun. Joint Ins. Fund, 307 N.J. Super.
453 (App. Div. 1998); E Z Sockets, Inc. v. Brighton-Best
Socket Screw Mfg. Inc., 307 N.J. Super. 546 (Ch. Div.
1996), aff’d o.b., 307 N.J. Super. 438 (App. Div. 1997);
Ideal Dairy Farms, Inc. v. Farmland Dairy Farms, Inc.,
282 N.J. Super. 140 (App. Div.), certif. denied, 141 N.J.
99 (1995); G & W, Inc. v. Borough of East Rutherford, 280
N.J. Super. 507 (App. Div. 1995); Fanelli v. City of
Trenton, 135 N.J. 582 (1994); Van Natta Mechanical
Corp. v. Di Staulo, 277 N.J. Super. 175 (App. Div. 1994);
Petrocco v. Dover General Hosp. and Medical Center, 273
N.J. Super. 501, (App. Div. 1994); Boardwalk Properties,
Inc. v. BPHC Acquisition, Inc., 253 N.J. Super. 515 (App.
Div. 1991); Kimmelman v. Henkels & McCoy, Inc., 108
N.J. 123 (1987); Monmouth Chrysler Plymouth, Inc. v.
Chrysler Corp., 203 N.J. Super. 281 (1985), modified 102
N.J. 485 (1986); Monmouth Real Estate Inv. Trust v.
Manville Foodland, Inc., 196 N.J. Super. 262 (App.
Div.1984), certif. denied, 99 N.J. 234 (1985);
Pomanowski v. Monmouth County Bd. of Realtors, 89 N.J.
306, cert. 459 U.S. 908 (1982); Glasofer Motors v.
Osterlund, Inc., 180 N.J. Super. 6 (App. Div. 1981);
California Dental Assn. v. F.T.C., 526 U.S. 756 (1999);
NYNEX Corp. v. Discon, Inc., 525 U.S. 128 (1998); State
Oil Co. v. Khan, 522 U.S. 3 (1997); Brown v. Pro
Football, Inc., 518 U.S. 231 (1996); Professional Real
Estate Inv., Inc. v. Columbia Pictures Indus., Inc., 508 U.S.
49 (1993); Spectrum Sports, Inc. v. McQuillen, 506 U.S.
447 (1993); Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451 (1992); Summit Health, Ltd. v. Pinhas,
500 U.S. 322 (1991); City of Columbia v. Omni Outdoor
Advertising, Inc., 499 U.S. 365 (1991); Palmer v. BRG of
Georgia, Inc., 498 U.S. 46 (1990); Kansas v. Utilicorp