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Saturday, April 27, 2019

BuzzFeed

From Wikipedia, the free encyclopedia

BuzzFeed.svg
Type of businessPrivate
Type of site
  • Entertainment
  • News
Available in
  • English
  • French
  • Spanish
  • Hindi
  • Arabic
  • German
  • Portuguese
  • Japanese
FoundedNovember 1, 2006
Headquarters
New York City
,
U.S.
Founder(s)
Key people
RevenueDecrease US$167 million (2015)
Employees1,701 (December 2017)
Websitewww.buzzfeed.com
Alexa rankNegative increase 273 (October 2018)
AdvertisingNative
RegistrationOptional
Current statusActive

BuzzFeed, Inc. is an American Internet media, news and entertainment company with a focus on digital media; it is based in New York City. BuzzFeed was founded in 2006 by Jonah Peretti and John S. Johnson III, to focus on tracking viral content. Kenneth Lerer, co-founder and chairman of The Huffington Post, started as a co-founder and investor in BuzzFeed and is now the executive chairman.
Originally known for online quizzes, "listicles", and pop culture articles, the company has grown into a global media and technology company, providing coverage on a variety of topics including politics, DIY, animals, and business. In late 2011, BuzzFeed hired Ben Smith of Politico as editor-in-chief, to expand the site into serious journalism, long-form journalism, and reportage. After years of investment in investigative journalism, by 2018 BuzzFeed News had won the National Magazine Award and the George Polk Award, and been a finalist for the Pulitzer Prize and the Michael Kelly Award.

Despite BuzzFeed's entrance into serious journalism, a 2014 Pew Research Center survey found that in the United States, BuzzFeed was viewed as an unreliable source by the majority of respondents, regardless of age or political affiliation. BuzzFeed News has since moved to its own domain rather than exist as a section of the main BuzzFeed website.

History

Jonah Peretti founded BuzzFeed in November 2006.
 
Prior to establishing BuzzFeed, Peretti was director of research and development and the OpenLab at Eyebeam, Johnson's New York City-based art and technology nonprofit, where he experimented with other viral media.

In 2006, while working at the Huffington Post, Peretti started BuzzFeed (originally called BuzzFeed Laboratories) as a side project, in partnership with his former supervisor John Johnson. In the beginning, BuzzFeed employed no writers or editors, just an "algorithm to cull stories from around the web that were showing stirrings of virality." The site initially launched an instant messaging client, BuzzBot, which sent users a link to popular content. The messages were sent based on algorithms which examined the links that were being quickly disseminated, scouring through the feeds of hundreds of blogs that were aggregating them. Later, the site began spotlighting the most popular links that BuzzBot found. Peretti hired curators to help describe the content that was popular around the web. In 2011, Peretti hired Politico's Ben Smith, who earlier had achieved much attention as a political blogger, to assemble a news operation in addition to the many aggregated "listicles".

In 2016, BuzzFeed formally separated its news and entertainment content into BuzzFeed News and the newly formed BuzzFeed Entertainment Group, which also includes BuzzFeed Motion Pictures. As of 2016, BuzzFeed had correspondents from 12 countries, and foreign editions in Australia, Brazil, France, Germany, India, Japan, Mexico, Spain, and the United Kingdom. By the end of BuzzFeed employed around 1,700 employees worldwide, although it announced plans in November of that year to lay off around 100 employees in the US, 45 in the UK, and 100 in France in June 2018.

On January 23, 2019, BuzzFeed notified all employees via memo that there would be an upcoming 15% reduction in workforce affecting the international, web content, and news divisions of the company. The layoffs would affect approximately 200 employees.

Funding

In 2011, BuzzFeed ran more than 100 Campaigns, resulting in triple revenue from 2010.

By February 2012, BuzzFeed raised $15.5 million the few months before through social-advertising campaigns.

In October 2012, BuzzFeed started running ads for the Obama campaign. This led to a huge boost in their advertising content and revenue. 

In August 2014, BuzzFeed raised $50 million from the venture capital firm Andreessen Horowitz, more than doubling previous rounds of funding. The site was reportedly valued at around $850 million by Andreessen Horowitz. BuzzFeed generates its advertising revenue through native advertising that matches its editorial content, and does not rely on banner ads. BuzzFeed also uses its familiarity with social media to target conventional advertising through other channels, such as Facebook.

In December 2014, growth equity firm General Atlantic acquired $50 million in secondary stock of the company.

In August 2015, NBCUniversal made a $200 million equity investment in BuzzFeed. Along with plans to hire more journalists to build a more prominent "investigative" unit, BuzzFeed planned on hiring journalists around the world and plans to open outposts in India, Germany, Mexico, and Japan. It planned on hiring staff for its UK bureau, its rapidly-expanding motion picture unit and its food-themed business, Tasty.

In October 2016, BuzzFeed raised $200 million from Comcast's TV and movie arm NBCUniversal, at a valuation of roughly $1.7 billion. Altogether, Comcast and its NBCUniversal subsidiary own about a third of BuzzFeed. BuzzFeed has said that it intends to stay independent.

In 2019, despite earning nearly 300 million dollars during the past year, they have laid off 200 members of its staff. 

Acquisitions

BuzzFeed's first acquisition was in 2012 when the company purchased Kingfish Labs, a startup founded by Rob Fishman, initially focused on optimizing Facebook ads.

On October 28, 2014, BuzzFeed announced its next acquisition, taking hold of Torando Labs. The Torando team was to become BuzzFeed's first data engineering team.

Content

BuzzFeed produces daily content, in which the work of staff reporters, contributors, syndicated cartoon artists, and its community are featured. Popular formats on the website include lists, videos, and quizzes. The style of such content inspired the parody website ClickHole. While BuzzFeed initially was focused exclusively on such viral content, according to The New York Times, "it added more traditional content, building a track record for delivering breaking news and deeply reported articles" in the years up to 2014. In that year, BuzzFeed deleted over 4000 early posts, "apparently because, as time passed, they looked stupider and stupider", as observed by The New Yorker.

BuzzFeed consistently ranked at the top of NewsWhip's "Facebook Publisher Rankings" from December 2013 to April 2014, until The Huffington Post entered the position.

News

BuzzFeed's news division began in December 2011 with the appointment of Ben Smith as editor-in-chief. In 2013, Pulitzer Prize winner Mark Schoofs of ProPublica was hired as head of investigative reporting. By 2016, BuzzFeed had 20 investigative journalists.

Video

BuzzFeed Video, BuzzFeed Motion Picture's flagship YouTube channel, produces original content. Its production studio and team are based in Los Angeles. Since hiring Ze Frank in 2012, BuzzFeed Video has produced several video series, including "The Try Guys". In August 2014, the company announced a new division, BuzzFeed Motion Pictures, which may produce feature-length films. As of August 27, 2018, BuzzFeed Video's YouTube channel had garnered more than 13.8 billion views and more than 17.2 million subscribers. BuzzFeed later announced that YouTube signed on for two feature-length series to be created by BuzzFeed Motion Pictures, entitled Broke and Squad Wars.

Podcasts

BuzzFeed started an in-house podcasting team in 2015, through which the podcasts Another Round and Internet Explorer were developed and launched. In September 2018, BuzzFeed shut down its podcast department and laid off the staff due to a lack of desired ad revenue. It cancelled most of its podcasts, including See Something, Say Something. In late January of 2019, they fired 200 staff across the company and cancelled the remaining podcast, Thirst Aid Kit.
Former podcasts:
  • Another Round
  • Internet Explorer
  • The News
  • See Something, Say Something
  • Thirst Aid Kit
  • Reporting To You
  • Rerun
  • The Tell Show
  • Women of the Hour

Community

On July 17, 2012, humor website McSweeney's Internet Tendency published a satirical piece entitled "Suggested BuzzFeed Articles", prompting BuzzFeed to create many of the suggestions. BuzzFeed listed McSweeney's as a "Community Contributor." The post subsequently received more than 350,000 page views, prompted BuzzFeed to ask for user submissions, and received media attention. Subsequently, the website launched the "Community" section in May 2013 to enable users to submit content. Users initially are limited to publishing only one post per day, but may increase their submission capacity by raising their "Cat Power", described on the BuzzFeed website as "an official measure of your rank in BuzzFeed's Community." A user's Cat Power increases as they achieve greater prominence on the site.

In January 2017, BuzzFeed's user-generated community content accumulated 100 millions view.

In February 2019, BuzzFeed News voted to unionise, following major layoffs. A dispute between BuzzFeed's upper executives and the union began when the executives failed to show up to a meeting.

Technology and social media

BuzzFeed receives the majority of its traffic by creating content that is shared on social media websites. BuzzFeed works by judging their content on how viral it will become, operating in a "continuous feedback loop" where all of its articles and videos are used as input for its sophisticated data operation. The site continues to test and track their custom content with an in-house team of data scientists and an external-facing "social dashboard". Using an algorithm dubbed "Viral Rank" created by Jonah Peretti and Duncan Watts, the company uses this formula to let editors, users, and advertisers try many different ideas, which maximizes distribution. Staff writers are ranked by views on an internal leaderboard. In 2014, BuzzFeed received 75% of its views from links on social media outlets such as Pinterest, Twitter, and Facebook.

Tasty

BuzzFeed's video series on comfort food, Tasty, is made for Facebook, where it has 98 million followers as of January 2019. The channel has substantially more views than BuzzFeed's dedicated food site. The channel included five spinoff segments: "Tasty Junior"—which eventually spun off into its own page, "Tasty Happy Hour" (alcoholic beverages), "Tasty Fresh", "Tasty Vegetarian", and "Tasty Story"—which has celebrities making and discussing their own recipes. Tasty has also released a cookbook.

The company also operates these international versions of Tasty in other languages. Tasty has also released its own kitchenware, which includes several products such as spatulas, cooking sheets, and mixing bowls. These products are sold in collaboration with Walmart. Tasty also sells their "One Top", which is a smart induction cooktop, as well as "Tasty Kits", which are kits that contains cooking items for cooking at home.

Worth It

Since 2016, Tasty also sponsors a show named Worth It starring Steven Lim, Andrew Ilnyckyj, and Adam Bianchi. In each episode, the trio visit three different food places with three drastically different price points in one food category. Steven Lim also stars in BuzzFeed Blue's "Worth It – Lifestyle" videos. The series is similar, in that three items or experiences are valued from different companies, each at their different price point, but focus on material items and experiences, such as plane seats, hotel rooms, and haircuts.

BuzzFeed Unsolved

BuzzFeed Unsolved is the most successful web series on BuzzFeed's BuzzFeed Multiplayer, created by Ryan Bergara. The show features Bergara and Shane Madej (who replaced original co-host Brent Bennett). The show covers some of history's most famous unsolved mysteries, presenting them and the theories that surround them in a comedic manner. In some episodes, they even visit the places involved with the mystery, often ghost hunting during Supernatural episodes.

The Try Guys

The Try Guys are a quartet of friends (Eugene Lee Yang, Ned Fulmer, Keith Habersberger, and Zach Kornfeld) who put themselves in different, and at times, compromising situations and record the results. In June 2018, the four left BuzzFeed and created their own independent channel, also titled "The Try Guys".

Night In / Night Out

Night In/Night Out is a series run by Ned and Ariel Fulmer. This show features the couple on two different dates, one at home featuring a homemade meal (using a BuzzFeed Tasty Recipe) and one at a restaurant in the Los Angeles area. Each episode focuses on one particular meal, such as baked salmon or hamburgers. At the end of each episode, Ned and Ariel decide whether they preferred the home-cooked meal (and the accompanying ambiance and price tag) or the meal at the restaurant. Ned and Ariel recently left BuzzFeed and was subsequently canceled. 

Notable stories

"The dress"

The most interesting thing to me is that it traveled. It went from New York media circle-jerk Twitter to international. And you could see it in my Twitter notifications because people started having conversations in, like, Spanish and Portuguese and then Japanese and Chinese and Thai and Arabic. It was amazing to watch this move from a local thing to, like, a massive international phenomenon. Cates Holderness
In February 2015, a post resulting in a debate over the color of an item of clothing from BuzzFeed's Tumblr editor Cates Holderness garnered more than 28 million views in one day, setting a record for most concurrent visitors to a BuzzFeed post. Holderness had shown the picture to other members of the site's social media team, who immediately began arguing about the dress colors among themselves. After creating a simple poll for users of the site, she left work and took the subway back to her Brooklyn home. When she got off the train and checked her telephone, it was overwhelmed by the messages on various sites. "I couldn't open Twitter because it kept crashing. I thought somebody had died, maybe. I didn't know what was going on." Later in the evening the page set a new record at BuzzFeed for concurrent visitors, which reached 673,000 at its peak.

Watermelon stunt

On April 8, 2016, two BuzzFeed interns created a live stream on Facebook, during which rubber bands were wrapped one by one around a watermelon until the pressure caused it to explode. The Daily Dot compared it to something from America's Funniest Home Videos or by the comedian Gallagher, and "just as stupid-funny, but with incredible immediacy and zero production costs". The video is seen as part of Facebook's strategy to shift to live video, Facebook Live, to counter the rise of Snapchat and Periscope among a younger audience.

Awards and recognition

In 2017, BuzzFeed won Webby Awards for Best News App and Best Interview/Talk Show (for Another Round), and president Greg Coleman was named Publishing Executive of the Year by Digiday.

In 2018, staff of BuzzFeed news was nominated and a finalist for a Pulitzer Prize in their international reporting category for their article that "proved that operatives with apparent ties to Vladimir Putin have engaged in a targeted killing campaign against his perceived enemies on British and American soil".

Criticism and controversies

Plagiarism

Benny Johnson was fired from BuzzFeed in July 2014 for plagiarism.
 
BuzzFeed has been accused of plagiarizing original content from competitors throughout the online and offline press. In June 2012, Gawker's Adrian Chen observed that one of BuzzFeed's most popular writers—Matt Stopera—frequently had copied and pasted "chunks of text into lists without attribution." In March 2013, The Atlantic Wire also reported several "listicles" had apparently been copied from Reddit and other websites. In July 2014, BuzzFeed writer Benny Johnson was accused of multiple instances of plagiarism. Two anonymous Twitter users chronicled Johnson attributing work that was not his own, but "directly lift[ed] from other reporters, Wikipedia, and Yahoo! Answers", all without credit. BuzzFeed editor Ben Smith initially defended Johnson, calling him a "deeply original writer". Days later, Smith acknowledged that Johnson had plagiarized the work of others 40 times and announced that Johnson had been fired, apologizing to BuzzFeed readers. "Plagiarism, much less copying unchecked facts from Wikipedia or other sources, is an act of disrespect to the reader", Smith said. "We are deeply embarrassed and sorry to have misled you." In total, 41 instances of plagiarism were found and corrected. In 2016, claims surfaced of the YouTube channel BuzzFeedVideo stealing ideas and content from other creators.

BuzzFeed has been the subject of multiple copyright infringement lawsuits, for both using content it had no rights to and encouraging its proliferation without attributing its sources: one for an individual photographer's photograph, and another for nine celebrity photographs from a single photography company.

Accuracy and reliability

In October 2014, a Pew Research Center survey found that in the United States, BuzzFeed was viewed as an unreliable source by the majority of people, regardless of political affiliation. Adweek noted that most respondents had not heard of BuzzFeed, and many users do not consider BuzzFeed a news site. In a subsequent Pew report based on 2014 surveys, BuzzFeed was among the least trusted sources by millennials. A 2016 study by the Columbia Journalism Review found readers less likely to trust a story (originally published in Mother Jones) that appeared to originate on BuzzFeed than the same article on The New Yorker website.

On January 18, 2019, Robert Mueller's office disputed a BuzzFeed report stating that Donald Trump instructed Michael Cohen to lie to Congress. A spokesman for Mueller's office characterized the BuzzFeed report as "not accurate".

Unpaid contributors

Matthew Perpetua, BuzzFeed's director of quizzes, published a blog post in January 2019 after being laid off, revealing that many of the site's most popular quizzes were created by unpaid contributors. Perpetua identified one college student in Michigan in particular was "the second-highest traffic driver worldwide." The student, Rachel McMahon said that until she saw Perpetua's blog post, she never knew that her quizzes were so significant for BuzzFeed's traffic. According to the Detroit Free Press, she had never asked BuzzFeed about getting paid and the only material goods she received from them were four $30 Amazon gift certificates, a BuzzFeed sweatshirt and T-shirt and several water bottles.

Advertiser influence on editorial

In April 2015, BuzzFeed drew scrutiny after Gawker observed the publication had deleted two posts that criticized advertisers. One of the posts criticized Dove soap (manufactured by Unilever), while another criticized Hasbro. Both companies advertise with BuzzFeed. Ben Smith apologized in a memo to staff for his actions. "I blew it," Smith wrote. "Twice in the past couple of months, I've asked editors—over their better judgment and without any respect to our standards or process—to delete recently published posts from the site. Both involved the same thing: my overreaction to questions we've been wrestling with about the place of personal opinion pieces on our site. I reacted impulsively when I saw the posts and I was wrong to do that. We've reinstated both with a brief note." Days later, one of the authors of the deleted posts, Arabelle Sicardi, resigned. An internal review by the company found three additional posts deleted for being critical of products or advertisements (by Microsoft, Pepsi, and Unilever).

In 2016, the Advertising Standards Authority of the United Kingdom ruled that BuzzFeed broke the UK advertising rules for failing to make it clear that an article on "14 Laundry Fails We've All Experienced" that promoted Dylon was an online advertorial paid for by the brand. Although the ASA agreed with BuzzFeed's defense that links to the piece from its homepage and search results clearly labelled the article as "sponsored content," this failed to take into account that individuals might link to the story directly, ruling that the labeling "was not sufficient to make clear that the main content of the web page was an advertorial and that editorial content was therefore retained by the advertiser."

Hiring practices

In February 2016, Scaachi Koul, a Senior Writer for BuzzFeed Canada, tweeted a request for pitches stating that BuzzFeed was "...looking for mostly non-white non-men" followed by "If you are a white man upset that we are looking mostly for non-white non-men I don't care about you go write for Maclean's." When confronted, she followed with the tweet "White men are still permitted to pitch, I will read it, I will consider it. I'm just less interested because, ugh, men." In response to the tweets, Koul received numerous rape and death threats and racist insults. Sarmishta Subramanian, a former colleague of Koul's, writing for Maclean's, condemned the reaction to the tweets, and commented that Koul's request for diversity was appropriate. Subramanian said that her provocative approach raised concerns of tokenism that might hamper BuzzFeed's stated goals. In January 2019, BuzzFeed announced that it will cut its workforce by 15%.

Ideology

BuzzFeed states in its editorial guide that "we firmly believe that for a number of issues, including civil rights, women's rights, anti-racism, and LGBT equality, there are not two sides". This has raised questions about whether BuzzFeed undermines its credibility by taking sides on political issues. In June 2015, BuzzFeed and websites like the Huffington Post and Mashable temporarily changed the theme of their social media avatars to rainbow colors to celebrate same-sex marriage being ruled constitutional in the United States.

In June 2016, the left-leaning media watchdog Fairness and Accuracy in Reporting found that in 100 BuzzFeed stories about Barack Obama, 65 were positive, 34 were neutral, and one was critical. The report called BuzzFeed's coverage of Obama "creepy" and "almost uniformly uncritical and often sycophantic". BuzzFeed has partnered with Obama on a get-out-the-vote campaign. Also in June 2016, BuzzFeed cancelled an advertising agreement with the Republican National Committee over what BuzzFeed founder Jonah Peretti called "offensive remarks" made by Donald Trump. Peretti said, "We certainly don't like to turn away revenue that funds all the important work we do across the company. However, in some cases we must make business exceptions: we don't run cigarette ads because they are hazardous to our health, and we won't accept Trump ads for the exact same reason."

In January 2017, BuzzFeed released what became known as the "Steele dossier", an uncorroborated private intelligence report that alleges several salacious accusations of Trump. Margaret Sullivan at The Washington Post wrote of the release, "It's a bad idea, and always has been, to publish unverified smears". David Graham at The Atlantic called it "an abdication of the basic responsibility of journalism". NBC's Chuck Todd called the release of the document "fake news". Ben Smith defended the decision to release the document from accusations that it was done out of partisanship arguing that the dossier is of "obvious central public importance."

Sherman Antitrust Act of 1890

From Wikipedia, the free encyclopedia

Sherman Antitrust Act
Great Seal of the United States
Long titleAn act to protect trade and commerce against unlawful restraints and monopolies
Enacted bythe 51st United States Congress
Citations
Statutes at Large26 Stat. 209
Legislative history
United States Supreme Court cases

Sen. John Sherman (ROH), the principal author of the Sherman Antitrust Act

The Sherman Antitrust Act of 1890 (26 Stat. 209, 15 U.S.C. §§ 17) was a United States antitrust law that was passed by Congress under the presidency of Benjamin Harrison, which regulates competition among enterprises.

The Sherman Act broadly prohibits (1) anticompetitive agreements and (2) unilateral conduct that monopolizes or attempts to monopolize the relevant market. The Act authorizes the Department of Justice to bring suits to enjoin (i.e. prohibit) conduct violating the Act, and additionally authorizes private parties injured by conduct violating the Act to bring suits for treble damages (i.e. three times as much money in damages as the violation cost them). Over time, the federal courts have developed a body of law under the Sherman Act making certain types of anticompetitive conduct per se illegal, and subjecting other types of conduct to case-by-case analysis regarding whether the conduct unreasonably restrains trade.

The law attempts to prevent the artificial raising of prices by restriction of trade or supply. "Innocent monopoly", or monopoly achieved solely by merit, is perfectly legal, but acts by a monopolist to artificially preserve that status, or nefarious dealings to create a monopoly, are not. The purpose of the Sherman Act is not to protect competitors from harm from legitimately successful businesses, nor to prevent businesses from gaining honest profits from consumers, but rather to preserve a competitive marketplace to protect consumers from abuses.

Background

In Spectrum Sports, Inc. v. McQuillan 506 U.S. 447 (1993) the Supreme Court said: 

The purpose of the [Sherman] Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.

According to its authors, it was not intended to impact market gains obtained by honest means, by benefiting the consumers more than the competitors. Senator George Hoar of Massachusetts, another author of the Sherman Act, said the following:

... [a person] who merely by superior skill and intelligence...got the whole business because nobody could do it as well as he could was not a monopolist..(but was if) it involved something like the use of means which made it impossible for other persons to engage in fair competition."

At Apex Hosiery Co. v. Leader 310 U. S. 469, 310 U. S. 492-93 and n. 15: 

The legislative history of the Sherman Act, as well as the decisions of this Court interpreting it, show that it was not aimed at policing interstate transportation or movement of goods and property. The legislative history and the voluminous literature which was generated in the course of the enactment and during fifty years of litigation of the Sherman Act give no hint that such was its purpose. They do not suggest that, in general, state laws or law enforcement machinery were inadequate to prevent local obstructions or interferences with interstate transportation, or presented any problem requiring the interposition of federal authority. In 1890, when the Sherman Act was adopted, there were only a few federal statutes imposing penalties for obstructing or misusing interstate transportation. With an expanding commerce, many others have since been enacted safeguarding transportation in interstate commerce as the need was seen, including statutes declaring conspiracies to interfere or actual interference with interstate commerce by violence or threats of violence to be felonies. The law was enacted in the era of "trusts" and of "combinations" of businesses and of capital organized and directed to control of the market by suppression of competition in the marketing of goods and services, the monopolistic tendency of which had become a matter of public concern. The goal was to prevent restraints of free competition in business and commercial transactions which tended to restrict production, raise prices, or otherwise control the market to the detriment of purchasers or consumers of goods and services, all of which had come to be regarded as a special form of public injury. For that reason the phrase "restraint of trade," which, as will presently appear, had a well understood meaning in common law, was made the means of defining the activities prohibited. The addition of the words "or commerce among the several States" was not an additional kind of restraint to be prohibited by the Sherman Act, but was the means used to relate the prohibited restraint of trade to interstate commerce for constitutional purposes, Atlantic Cleaners & Dyers v. United States, 286 U. S. 427, 286 U. S. 434, so that Congress, through its commerce power, might suppress and penalize restraints on the competitive system which involved or affected interstate commerce. Because many forms of restraint upon commercial competition extended across state lines so as to make regulation by state action difficult or impossible, Congress enacted the Sherman Act, 21 Cong.Rec. 2456. It was in this sense of preventing restraints on commercial competition that Congress exercised "all the power it possessed." Atlantic Cleaners & Dyers v. United States, supra, 286 U. S. 435.


Provisions

Original text

The Sherman Act is divided into three sections. Section 1 delineates and prohibits specific means of anticompetitive conduct, while Section 2 deals with end results that are anti-competitive in nature. Thus, these sections supplement each other in an effort to prevent businesses from violating the spirit of the Act, while technically remaining within the letter of the law. Section 3 simply extends the provisions of Section 1 to U.S. territories and the District of Columbia.
Section 1:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.
Section 2:
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony [. . . ]

Subsequent legislation expanding its scope

The Clayton Antitrust Act, passed in 1914, proscribes certain additional activities that had been discovered to fall outside the scope of the Sherman Antitrust Act. For example, the Clayton Act added certain practices to the list of impermissible activities:
  • price discrimination between different purchasers, if such discrimination tends to create a monopoly
  • exclusive dealing agreements
  • tying arrangements
  • mergers and acquisitions that substantially reduce market competition.
The Robinson–Patman Act of 1936 amended the Clayton Act. The amendment proscribed certain anti-competitive practices in which manufacturers engaged in price discrimination against equally-situated distributors.

Legacy

The federal government began filing cases under the Sherman Antitrust Act in 1890. Some cases were successful and others were not; many took several years to decide, including appeals.

Notable cases filed under the act include:

Legal application

Constitutional basis for legislation

Congress claimed power to pass the Sherman Act through its constitutional authority to regulate interstate commerce. Therefore, federal courts only have jurisdiction to apply the Act to conduct that restrains or substantially affects either interstate commerce or trade within the District of Columbia. This requires that the plaintiff must show that the conduct occurred during the flow of interstate commerce or had an appreciable effect on some activity that occurs during interstate commerce.

Elements

A Section 1 violation has three elements:
(1) an agreement;
(2) which unreasonably restrains competition; and
(3) which affects interstate commerce.
A Section 2 monopolization violation has two elements:
(1) the possession of monopoly power in the relevant market; and
(2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.
Section 2 also bans attempted monopolization, which has the following elements:
(1) qualifying exclusionary or anticompetitive acts designed to establish a monopoly
(2) specific intent to monopolize; and
(3) dangerous probability of success (actual monopolization).

Violations "per se" and violations of the "rule of reason"

Violations of the Sherman Act fall (loosely) into two categories:
  • Violations "per se": these are violations that meet the strict characterization of Section 1 ("agreements, conspiracies or trusts in restraint of trade"). A per se violation requires no further inquiry into the practice's actual effect on the market or the intentions of those individuals who engaged in the practice. Conduct characterized as per se unlawful is that which has been found to have a "'pernicious effect on competition' or 'lack[s] . . . any redeeming virtue'" Such conduct "would always or almost always tend to restrict competition and decrease output." When a per se rule is applied, a civil violation of the antitrust laws is found merely by proving that the conduct occurred and that it fell within a per se category. (This must be contrasted with rule of reason analysis.) Conduct considered per se unlawful includes horizontal price-fixing, horizontal market division, and concerted refusals to deal.
  • Violations of the "rule of reason": A totality of the circumstances test, asking whether the challenged practice promotes or suppresses market competition. Unlike with per se violations, intent and motive are relevant when predicting future consequences. The rule of reason is said to be the "traditional framework of analysis" to determine whether Section 1 is violated. The court analyzes "facts peculiar to the business, the history of the restraining, and the reasons why it was imposed," to determine the effect on competition in the relevant product market. A restraint violates Section 1 if it unreasonably restrains trade.
Quick-look: A "quick look" analysis under the rule of reason may be used when "an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on customers and markets," yet the violation is also not one considered illegal per se. Taking a "quick look," economic harm is presumed from the questionable nature of the conduct, and the burden is shifted to the defendant to prove harmlessness or justification. The quick-look became a popular way of disposing of cases where the conduct was in a grey area between illegality "per se" and demonstrable harmfulness under the "rule of reason".

Modern trends

Inference of conspiracy

A modern trend has increased difficulty for antitrust plaintiffs as courts have come to hold plaintiffs to increasing burdens of pleading. Under older Section 1 precedent, it was not settled how much evidence was required to show a conspiracy. For example, a conspiracy could be inferred based on parallel conduct, etc. That is, plaintiffs were only required to show that a conspiracy was conceivable. Since the 1970s, however, courts have held plaintiffs to higher standards, giving antitrust defendants an opportunity to resolve cases in their favor before significant discovery under FRCP 12(b)(6). That is, to overcome a motion to dismiss, plaintiffs, under Bell Atlantic Corp. v. Twombly, must plead facts consistent with FRCP 8(a) sufficient to show that a conspiracy is plausible (and not merely conceivable or possible). This protects defendants from bearing the costs of antitrust "fishing expeditions"; however it deprives plaintiffs of perhaps their only tool to acquire evidence (discovery).
Manipulation of market
Second, courts have employed more sophisticated and principled definitions of markets. Market definition is necessary, in rule of reason cases, for the plaintiff to prove a conspiracy is harmful. It is also necessary for the plaintiff to establish the market relationship between conspirators to prove their conduct is within the per se rule.

In early cases, it was easier for plaintiffs to show market relationship, or dominance, by tailoring market definition, even if it ignored fundamental principles of economics. In U.S. v. Grinnell, 384 U.S. 563 (1966), the trial judge, Charles Wyzanski, composed the market only of alarm companies with services in every state, tailoring out any local competitors; the defendant stood alone in this market, but had the court added up the entire national market, it would have had a much smaller share of the national market for alarm services that the court purportedly used. The appellate courts affirmed this finding; however, today, an appellate court would likely find this definition to be flawed. Modern courts use a more sophisticated market definition that does not permit as manipulative a definition.

Monopoly

Section 2 of the Act forbade monopoly. In Section 2 cases, the court has, again on its own initiative, drawn a distinction between coercive and innocent monopoly. The act is not meant to punish businesses that come to dominate their market passively or on their own merit, only those that intentionally dominate the market through misconduct, which generally consists of conspiratorial conduct of the kind forbidden by Section 1 of the Sherman Act, or Section 3 of the Clayton Act.

Application of the act outside pure commerce

The Act was aimed at regulating businesses. However, its application was not limited to the commercial side of business. Its prohibition of the cartel was also interpreted to make illegal many labor union activities. This is because unions were characterized as cartels as well (cartels of laborers). This persisted until 1914, when the Clayton Act created exceptions for certain union activities.

Preemption by Section 1 of state statutes that restrain competition

To determine whether a particular state statute that restrains competition was intended to be preempted by the Act, courts will engage in a two-step analysis, as set forth by the Supreme Court in Rice v. Norman Williams Co.:
  • First, they will inquire whether the state legislation "mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or ... places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute." Rice v. Norman Williams Co., 458 U.S. 654, 661; see also 324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987) ("Our decisions reflect the principle that the federal antitrust laws pre-empt state laws authorizing or compelling private parties to engage in anticompetitive behavior.")
  • Second, they will consider whether the state statute is saved from preemption by the state action immunity doctrine (aka Parker immunity). In California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980), the Supreme Court established a two-part test for applying the doctrine: "First, the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; second, the policy must be actively supervised by the State itself." Id. (citation and quotation marks omitted).

Criticism

Alan Greenspan, in his essay entitled Antitrust described the Sherman Act as stifling innovation and harming society. "No one will ever know what new products, processes, machines, and cost-saving mergers failed to come into existence, killed by the Sherman Act before they were born. No one can ever compute the price that all of us have paid for that Act which, by inducing less effective use of capital, has kept our standard of living lower than would otherwise have been possible." Greenspan summarized the nature of antitrust law as: "a jumble of economic irrationality and ignorance."

Greenspan at that time was a disciple and friend of Ayn Rand, and he first published Antitrust in Rand's monthly publication The Objectivist Newsletter. Rand, who described herself as "a radical for capitalism," opposed antitrust law not only on economic grounds but also morally, as a violation of property rights, asserting that the "meaning and purpose" of antitrust law is "the penalizing of ability for being ability, the penalizing of success for being success, and the sacrifice of productive genius to the demands of envious mediocrity."

In 1890, Representative William Mason said "trusts have made products cheaper, have reduced prices; but if the price of oil, for instance, were reduced to one cent a barrel, it would not right the wrong done to people of this country by the trusts which have destroyed legitimate competition and driven honest men from legitimate business enterprise." Consequently, if the primary goal of the act is to protect consumers, and consumers are protected by lower prices, the act may be harmful if it reduces economy of scale, a price-lowering mechanism, by breaking up big businesses. Mason put small business survival, a justice interest, on a level concomitant with the pure economic rationale of consumer.

Economist Thomas DiLorenzo notes that Senator Sherman sponsored the 1890 William McKinley tariff just three months after the Sherman Act, and agrees with The New York Times which wrote on October 1, 1890: "That so-called Anti-Trust law was passed to deceive the people and to clear the way for the enactment of this Pro-Trust law relating to the tariff." The Times went on to assert that Sherman merely supported this "humbug" of a law "in order that party organs might say...'Behold! We have attacked the trusts. The Republican Party is the enemy of all such rings.'" 

Dilorenzo writes: "Protectionists did not want prices paid by consumers to fall. But they also understood that to gain political support for high tariffs they would have to assure the public that industries would not combine to increase prices to politically prohibitive levels. Support for both an antitrust law and tariff hikes would maintain high prices while avoiding the more obvious bilking of consumers."

Robert Bork was well known for his outspoken criticism of the antitrust regime. Another conservative legal scholar and judge, Richard Posner of the Seventh Circuit does not condemn the entire regime, but expresses concern with the potential that it could be applied to create inefficiency, rather than to avoid inefficiency. Posner further believes, along with a number of others, including Bork, that genuinely inefficient cartels and coercive monopolies, the target of the act, would be self-corrected by market forces, making the strict penalties of antitrust legislation unnecessary.

Conversely, liberal Supreme Court Justice William O. Douglas criticized the judiciary for interpreting and enforcing the antitrust law unequally: "From the beginning it [the Sherman Act] has been applied by judges hostile to its purposes, friendly to the empire builders who wanted it emasculated... trusts that were dissolved reintegrated in new forms... It is ironic that the Sherman Act was truly effective in only one respect, and that was when it was applied to labor unions. Then the courts read it with a literalness that never appeared in their other decisions."

According to a 2018 study in the journal Public Choice, "Senator John Sherman of Ohio was motivated to introduce an antitrust bill in late 1889 partly as a way of enacting revenge on his political rival, General and former Governor Russell Alger of Michigan, because Sherman believed that Alger personally had cost him the presidential nomination at the 1888 Republican national convention... Sherman was able to pursue his revenge motive by combining it with the broader Republican goals of preserving high tariffs and attacking the trusts. "

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