9th NLUJ Respondent

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9th NLUJ Antitrust Moot, 2018

Best Team Memorial - Respondent
BEFORE THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL, BOHEMIA

Appellate Jurisdiction U/s 53B, Bohemian Competition Act, 2002
Against the order U/s 43A dated 3 August 2017
Lutyen TV Pvt. Ltd. . . Appellant;
Versus
Competition Commission of Bohemia . . Respondent.
Against the order in Case No. 1 & 2 of 2018
Versus
Sandy Home Store & RK & Competition Commission of Bohemia . . Respondent.
Against the order in Case No. 3 of 2018
Versus
Sandy Home Store & Competition Commission of Bohemia . . Respondent.
MEMORIAL FILED ON BEHALF OF SANDY HOME STORE, RK, AND COMPETITION COMMISSION
OF BOHEMIA
TABLE OF CONTENTS
TABLE OF CONTENTS I
LIST OF ABBREVIATIONS IV
INDEX OF AUTHORITIES VII
STATEMENT OF JURISDICTION XIV
STATEMENT OF FACTS XV
ISSUES FOR CONSIDERATION XVIII
SUMMARY OF ARGUMENTS XIX
WRITTEN SUBMISSIONS 1
ISSUE I. LUTYEN HAS VIOLATED THE GUN-JUMPING PROVISION U/S 43A. 1
A. THE MARKET PURCHASES AND THE APA WERE I NTERCONNECTED TRANSACTIONS. 1
B. ALTERNATIVELY, ITEM 1 SCHEDULE 1 DID NOT EXEMPT THE NOTIFICATION OF THE 3
MARKET PURCHASES.
i. The market purchases were neither ‘solely an investment’ nor ‘in the 3
ordinary course of business’.
C. THE MCA NOTIFICATION DATED 27 MARCH 2017 DID NOT EXEMPT LUTYEN WHICH 5
NOTIFYING THE ACQUISITION OF TOJO'S CASTING TECHNOLOGY DIVISION.
i. The applicable law is the pre-notification law when the cause of action 5
arises.
ii. The notification amends the substantive application of relevant sections 6
and therefore, has a prospective operation.
ISSUE II. LUTYEN HAS ABUSED ITS DOMINANCE IN UHD TV MARKET TO 7
INCREASE ITS SALE IN THE CASTING DEVICES MARKET BY INDULGING IN A TIE-IN
ARRANGEMENT.
A. LUTYEN IS DOMINANT IN THE RELEVANT TYING MARKET FOR MANUFACTURE AND SALE 8
OF UHD TV.
i. Relevant market. 8
ii. Dominance. 9
B. LUTYEN HAS ABUSED ITS DOMINANCE TO I NCREASE ITS SALES IN THE CASTING 10
DEVICES MARKET U/S 4(2)(D) AND 4(2)(E).
C. LUTYEN HAS ALSO I NDULGED IN A TIE-IN ARRANGEMENT UNDER SECTION 3(4)(A). 11
i. UHD TV and casting device are two distinct products. 12
ii. The conduct is coercive towards the consumers. 12
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iii. The conduct causes AAEC. 13

ISSUE III. LUTYEN HAS VIOLATED THE CCB'S ORDER REGARDING CONDITIONAL 17
APPROVAL BY INDULGING IN AN EXCLUSIVE ARRANGEMENT.
A. THE PART OF JOINT PENALTY CORRESPONDING TO THE VIOLATION OF CCB'S ORDER 18
REGARDING CONDITIONAL APPROVAL IS NOT APPEALABLE.
ISSUE IV. THE RESALE PRICE MAINTENANCE IMPOSED BY LUTYEN VIOLATES THE 19
PROVISION OF THE COMPETITION ACT , 2002.
A. THE RPM AGREEMENT CAUSES AAEC. 20
i. RPM shall drive out existing competitors, will lead to foreclosure of 21
competition, and will not improve the distribution system.
ii. RPM shall not lead to any accrual of benefits to the consumers. 23
iii. RPM is dispensable to achieve the said efficiencies due to the presence of 26
less restrictive alternatives.
ISSUE V. SANDY HOME STORE HAS NOT INDULGED IN A REFUSAL TO DEAL U/S 3 27
(4)(D)
A. THE NCLAT HAS NO JURISDICTION TO HEAR THE APPEAL. 27
i. CCB is free to pass an order against the DG's Report. 27
ii. CCB has passed the order u/s 26(8). 28
iii. The order is not appealable to NCLAT. 28
B. SANDY'S CONDUCT DOES NOT AMOUNT TO A REFUSAL TO DEAL. 29
i. An enterprise has the freedom to choose its trading partners. 29
ii. Refusal to deal because of a legitimate business reason is justified. 30
iii. The conduct makes perfect economic sense. 31
C. THE CONDUCT IS NOT ANTI-COMPETITIVE. 31
i. There are alternatives to Sandy's distribution network. 31
ii. Sandy's dominant distribution network is no ground for penalizing its 32
refusal….
PRAYER XXII
LIST OF ABBREVIATIONS
Abbreviations Full Forms
AAEC Appreciable Adverse Effect on Competition
AIR All India Reporter
APA Asset Purchase Agreement
CCB Competition Commission of Bohemia
CCI Competition Commission of India
Co Company
COMPAT Competition Appellate Tribunal
CRT Cathode Ray Tube
D Colo District of Colombia
DG Director General
ECR European Court Reports
Edn Edition
F 2d Federal Reporter, Second Series
F 3d Federal Reporter, Third Series
F Supp Federal Supplement
FHD Full High Definition
HD High Definition
ICN International Competition Network
Inc Incorporated
LLP Limited Liability Partnership
Ltd Limited
Lutyen Lutyen TV Pvt. Ltd
MCA Ministry of Corporate Affairs
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MDNC Middle District of North Carolina

MRP Maximum Retail Price
NCLAT National Company Law Appellate Tribunal
ND Cal Northern District of California
No Number
OECD Organization for Economic Co-operation and Development
OFT Office of Fair Trading
OJ Official Journal
Ors Others
Pvt Private
Reg Regulation
RPM Resale Price Maintenance
RTD Refusal to Deal
S Ct Supreme Court (US)
SCC Supreme Court Cases
SDNY Southern District of New York
Supp Supplement
TFEU Treaty on the Functioning of the European Union
TV Television
U/S Under Section
UHD Ultra High Definition
UKCLR UK Competition Law Reporter
UOI Union of India
US United States
V Versus
INDEX OF AUTHORITIES
INDIAN CASES:
SUPREME COURT
CCI v. SAIL (2010) 10 SCC 744 19,
27,
29
CIT Mumbai v. Anjum MH Ghaswala (2002) 1 SCC 633 7
CIT v. Vatika Township Private Limited (2015) 1 SCC 1 7
Guntaih v. Hambamma (2005) 6 SCC 228 29
Nandani Satpathy v. PC Dani (1978) 2 SCC 424 : AIR 1978 SC 1025 28
Rama Varma Bharathan Thampuram v. State of Kerala (1979) 4 SCC 782 28
Shyam Sunder v. Ram Kumar (2001) 8 SCC 24 7
Super Cassettes Industries Limited v. State of UP (2009) 10 SCC 531 19
The Chairman SEBI v. Shriram Mutual Fund (2006) 5 SCC 361 6
Union of India v. IndusInd Bank Limited (2016) 9 SCC 720 6
COMPETITION APPELLATE TRIBUNAL
SCM Soilfert Ltd v. CCI Appeal No 59/2015 6
Thomas Cook (India) Limited v. CCI Appeal No 48/2014 2
COMPETITION COMMISSION OF INDIA
Abbot/Mylan order u/s 31(1), Combination Registration No C-2014/08/202 3
Alibaba/Jasper Infotech order u/s 31(1), Combination Registration No C-2015/08/301 3
Deepa Narula v. Taneja Developers and Infrastructures Ltd Case No 22/2012 8
EMC order u/s 43A, Combination Registration No C-2015/07/293 2,
4
Etihad order u/s 43A, Combination Registration No C-2013/05/122 1
Fx Enterprise Solutions India v. Hyundai Motor India Ltd Case No 36 & 82/2014 20,
22,
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23
GE Energy order u/s 43A, Combination Registration No C-2015/01/241 4
ITC order u/s 43A, Combination Registration No C-2017/02/485 4,
6,
7
ESYS Information Technologies Pvt Ltd v. Intel Technologies Case No 48/2011 10,
21
MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd Case No 13/2009 11
Om Datt Sharma v. Adidas AG Case No 10/2014 8
Piramal Enterprises order u/s 31(1), Combination Registration No C-2015/02/249 2,
3,
4
Shamsher Kataria v. Honda Siel Cars India Ltd Case No 3/2011 16
Shri Ghanshyam Dass Vij v. Bajaj Corp Ltd Case No 68/2013 20
Sumitomo Mitsui/Reliance Capital order u/s 31(1), Combination Registration No C- 3
2014/12/235
Sun Pharma/Ranbaxy order u/s 31(7), Combination Registration No C-2014/05/170 18
Thomas Cook order u/s 43A, Combination Registration No C-2014/02/153 2
Vedanta order u/s 31(1), Combination Registration No C-2012/03/45 2
Vikrant Bhagi v. Media Video Limited Case No 28/2013 8
US CASES:
Advo Inc v. Philadelphia Newspapers Inc 51 F 3d 1191 (3rd Cir 1995) 14
Aspen Skiing Co v. Aspen Highlands Skiing Corp 472 US 585 (1985) 14,
29,
31
Brooke Group Inc v. Brown & Williamson Tobacco Corp 748 F Supp 344 (MDNC 1990). 32
Brown Shoe Co v. US 370 US 294 (1962) 8
Carpa v. Ward Foods 536 F 2d 39 (5th Cir 1976) 17
Cascade Health Solutions v. PeaceHealth 502 F 3d 895 (9th Cir 2007) 14
Fortner Enterprises Inc v. United States Steel Corp 394 US 495 (1969) 13,
15
IBM Corporation v. US 298 US 131 (1936) 16
Illinois Tool Works Inc v. Independent Ink Inc 126 S Ct 1281 (2006). 9
In re Data General Corporation Antitrust Litigation 490 F Supp 1089 (ND Cal 1980) 17
International Salt Company v. US 332 US 392 (1947) 16,
17
Jefferson Parish Hospital v. Hyde 466 US 2 (1984) 13,
15,
17
Leegin Creative Leather Products Inc v. PSKS Inc 551 US 877 (2007) 23
LePage's Inc v. 3M 324 F 3d 141 (3rd Cir 2003) 13
Nobody in Particular Presents v. Clear Channel Communications 311 F Supp 2d 1048 (D Colo 13
2004)
Northern Pacific Railway Company v. US 356 US 1 (1958) 13
Ortho Diagnostic Systems Inc v. Abbot Labs Inc 920 F Supp 455 (SDNY 1996) 14
Simpson v. Union Oil Co 377 US 13 (1964) 31
United States v. Socony Vaccum Oil Co 310 US 150 (1940) 24,
30
US v. Grinnell Corp 384 US 563 (1966) 8
Verizon Communications Inc v. Law Offices of Curtis Trinko LLP 540 US 398 (2004) 32
Virgin Atlantic Airways Ltd v. British Airways 257 F 3d 256 (2nd Cir 2000) 14
EU CASES:
Case 27/76 United Brands & Co v. Commission 1978 ECR 207 8,
9
Case 7/97 Oscar Bronner v. Mediaprint Zeitungs (1998) 1 ECR 7791 33
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Case 85/76 Hoffmann-La Roche v. Commission 1979 ECR 461 9,

12
Case T-201/04 Microsoft v. Commission (2007) 2 ECR 3601 12
Case T-30/89 Hilti AG v. Commission (1991) 2 ECR 1439 9
Case T-41/96 Bayer AG v. Commission (2000) 2 ECR 3383 30
Virgin Atlantic v. British Airways (2000) OJ L 30/1 10
BOOKS:
Alison Jones & Brenda Sufrin, EU Competition Law : Text, Cases and Materials (4th edn, 30
Oxford University Press 2010)
MA Utton, Market Dominance and Antitrust Policy (2nd edn, Edward Elgar Publishing 2003) 25
Phillip Areeda & Herbert Hovenkamp, Antitrust Law : An Analysis of Antitrust Principles and 21,
their Application (2nd edn, Aspen Publishers 2004) 22,
25
SM Dugar, Guide to Competition Law (6th edn, Lexis Nexis 2016) 28
JOURNALS:
Benjamin Klein & Kevin Murphy, ‘Vertical Restraints as Contract Enforcement 26
Mechanisms’ (1988) 31(2) The Journal of Law and Economics 265
Howard Marvel, ‘The Resale Price Maintenance Controversy : Beyond the Conventional 24
Wisdom’ (1994) 63(1) Antitrust Law Journal 59
Marina Lao, ‘Internet Retailing and Free Riding : A Post-Leegin Antitrust Analysis’ (2011) 14 31
Journal of Internet Law 1
Marina Lao, ‘Resale Price Maintenance : The Internet Phenomenon and ‘Free Rider’ 21,
Issues’ (2010) 55 Antitrust Bulletin 473 26,
27
Mart Kneepkens, ‘Resale Price Maintenance : Economics Call for a More Balanced 25
Approach’ (2007) 28 European Competition Law Review 657
Oren Bar-Gill, ‘Bundling and Consumer Misperception’ (2006) 71(1) The University of 15
Chicago Law Review 33
Robert Steiner, ‘How Manufacturers deal with Price Cutting Retailers : When are Vertical 22
Restraints Efficient?’(1997) 65 Antitrust Law Journal 407
Robert Steiner, ‘Manufacturers’ Promotional Allowances, Free Riders and Vertical 27
Restraints’ (1991) 36(2) Antitrust Bulletin 383
Thomas Krattenmaker & Steven Salop, ‘Anticompetitive Exclusion : Raising Rivals Costs to 32
Achieve Power over Price’ (1986) 96 Yale Law Journal 209
ONLINE RESOURCES:
Competition Commission of India, ‘Consultation prior to filing of notice of the proposed 5
combination under section 6(2)’ (25 May 2011)
<www.cci.gov.in/sites/default/files/faq/ConsultationPrior250511.pdf>
Eric Gippini-Fournier, ‘Resale Price Maintenance in the EU : in statu quo ante bellum?’ (21 23
September 2009) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1476443>
Herbert Hovenkamp, ‘Tying Arrangements and Lawful Alternatives : Transaction Cost 17
Considerations’ (20 February 2011) <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1763386>
Marina Lao, ‘Free Riding : An Overstated, and Unconvincing, Explanation for Resale Price 24
Maintenance’ (16 December 2007) <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1024221>
Vikram Sobti & Kanika Chaudhary, ‘Analysis of the Verdict of the Apex Court in CCI v. Steel 29
Authority of India Limited’ (23 May 2011)
<http://www.indialawjournal.org/archives/volume4/issue_2/article_by_vikram_kanika.html>
STATUTES, REGULATIONS & NOTIFICATIONS:
Combination Regulations 2011 1,
3,
4
MCA Notification SO 674(E) (4 March 2016) 5
MCA Notification SO 988(E) (27 March 2017) 7
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The Competition Act 2002 3,

8,
10,
11,
18,
19
The Constitution of India 1950 18
REPORTS, RECOMMENDATIONS & GUIDELINES:
Antitrust Modernization Commission, ‘Report and Recommendations’ 2007 16
European Commission, ‘DG Competition Discussion Paper on the Application of Article 82 of 10,
the Treaty to Exclusionary Abuses’ 2005 12
European Commission, ‘Guidelines on Vertical Restraints’ 2010 22,
24,
26
European Commission, ‘White Paper : Towards more effective EU merger control’ 2014 4
OECD, ‘Policy Roundtables on Refusal to Deal’ 2007 33
OECD, ‘Policy Roundtables Resale Price Maintenance’ 2008 20,
23
STATEMENT OF JURISDICTION
In the present appeal under Section 53B of the Bohemian Competition Act, 2002 concerning the
matter of Lutyen TV Pvt. Ltd v. Competition Commission of Bohemia, the respondent humbly
submits to the Jurisdiction of this Hon'ble Tribunal.
matter of Lutyen TV Pvt. Ltd v. Sandy Home Store & RK & Competition Commission of Bohemia, the
respondents humbly submit to the Jurisdiction of this Hon'ble Tribunal.
matter of Lutyen TV Pvt. Ltd v. Sandy Home Store & Competition Commission of Bohemia, the
respondents humbly submit to the Jurisdiction of this Hon'ble Tribunal.
STATEMENT OF FACTS
I. THE PARTIES
1. Lutyen TV Pvt. Ltd. (hereinafter Lutyen) is the largest television manufacturer in Bohemia,
incorporated under the provisions of Bohemian Companies Act, 1956 and specializing in the
manufacture of UHD TVs.
2. Tojo, a company incorporated under the Bohemian Companies Act, 1956 and trading on the
National Stock Exchange of Bohemia, was previously the most popular manufacturer of CRT TVs but
has witnessed declining profits during the past decade due to its failure to keep up with technology.
Tojo's casting device, the Tojo Stick, which was initially restricted to FHD TVs is now compatible
with UHD TVs and is its most profitable business since 2015.
3. Sandy Home Store is Bohemia's largest distributor of home electronics, with showrooms
across the territory of Bohemia and is renowned for stocking all television brands and casting
devices and selling them as per consumer preferences. It also manufactures many products
including UHD televisions. Its business model and one of the reasons for its success is that it gives
significant discounts to its end customers.
4. RK is a company specializing in the manufacture and sale of casting devices for UHD TVs with
a 40% market share in the casting devices market.
II. THE ACQUISITION
5. Tojo declined Lutyen's offer to purchase its casting technology division. However, determined
to acquire the Tojo Stick business, Lutyen acquired 4%, 5%, and 3% shareholdings in Tojo via
successive market purchases over 2016-17.
6. Concerned with Tojo's future, its senior management entered into an Asset Purchase
Agreement with Lutyen's CEO for the sale of Tojo's casting technology division on 24 February 2017
in exchange for cash consideration payable to Tojo's shareholders and the return of Lutyen's 12%
shareholding in Tojo.
7. On 27 March 2017, Ministry of Corporate Affairs (hereinafter MCA) published a notification in
the Gazette of Bohemia regarding certain changes in calculating the thresholds under Section 5 of
the Competition Act.
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8. On 10 June 2017, Lutyen issued a press release announcing the acquisition of Tojo's casting
technology division.
III. THE GUN-JUMPING
9. CCB observed that Lutyen's acquisition of Tojo's casting technology division was notifiable
under Section 5 of the Competition Act and directed Lutyen TV to file a belated notification of the
transaction with it, for a substantive review.
10. CCB in its review found that the transaction has the potential to cause an appreciable
adverse effect on competition but approved the transaction on the condition that there would be no
exclusive arrangement between Lutyen's TVs and the Tojo Stick, and the latter would remain
compatible with the TVs of all other brands.
11. On 3 August 2017, CCB levied a penalty upon Lutyen for its failure to notify the acquisition
of Tojo's casting technology division and the earlier market purchases and consummating the
transaction without its prior approval. Aggrieved, Lutyen filed an appeal before the NCLAT
challenging the CCB's order.
IV. POST-ACQUISITION PERIOD
12. To capitalize on the festival holidays, Lutyen proceeded to sell its Ultra HD TV and Tojo Stick
as a package at the same price of the television and mandated the distributors to sell it as a
package as well.
13. On request of certain distributors, Lutyen included a clause in its distributorship agreement,
which mandated that distributors only provide end customers with a discount not exceeding 10% of
MRP.
V. THE CONFLICT : JUDICIAL PROCEEDINGS
A. CASE NO 1 & 2 OF 2018
14. Due to the discount restrictions imposed by Lutyen, Sandy Home Store refused to stock its
products and filed a complaint before the CCB alleging a violation of the provisions of the
Competition Act.
15. RK witnessed a major drop in its market shares, which in its view, was due to the Lutyen's
bundling of its UHD TV with the Tojo Stick. Aggrieved by what it viewed as anti-competitive
behavior, RK filed a complaint against Lutyen before the CCB.
16. CCB found a prima facie violation and therefore, passed a common order for a detailed
investigation under Section 26(1). The DG found Lutyen guilty of indulging in resale price
maintenance, tying in, and failure to comply with commitments based on which the transaction was
approved.
17. CCB passed an order imposing a penalty of BNR 53 Crore on Lutyen, in addition to a
direction to abide by the commitments made during the merger review. Aggrieved, Lutyen filed an
appeal before the NCLAT.
B. CASE NO. 3 OF 2018
18. Lutyen filed a complaint against Sandy for discriminating against Lutyen's products and
refusing to stock them.
19. The DG in its investigation found that Sandy had specifically singled out Lutyen's products.
However, the CCB disagreed with the DG's findings and dismissed the complaint. Aggrieved, Lutyen
filed an appeal before the NCLAT.
ISSUES FOR CONSIDERATION
I. Whether Lutyen has violated the gun-jumping provisions u/s 43A, Bohemian Competition Act,
2002?
II. Whether Lutyen has abused its dominance in the UHD TV market to increase its sale in the
casting devices market through a tie-in arrangement?
III. Whether Lutyen has violated the CCB's order regarding the conditional approval of the
acquisition?
IV. Whether Lutyen has violated Section 3(4)(e) of the Bohemian Competition Act, 2002 by
practicing resale price maintenance?
V. Whether Sandy has violated Section 3(4)(d) of the Bohemian Competition Act, 2002 by
indulging in a refusal to deal?
SUMMARY OF ARGUMENTS
I. LUTYEN HAS VIOLATED THE GUN-JUMPING PROVISION U/S 43A.
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The market purchases and the Asset Purchase Agreement (hereinafter APA) were inter-
connected transactions since the APA mentions the market purchases. Further, the execution of the
latter occurred only because of the market purchases, thus satisfying the mutual interdependence
test. Therefore, the appellant should have filed the two transactions as a single composite
combination. Further, the market purchases, even individually, were notifiable because an
investment in a competitor can never be ‘solely an investment’ or ‘in the ordinary course of
business’. The APA was a notifiable transaction and not exempted under the MCA notification since
the notification is not retrospectively applicable and the defaulter becomes liable for a penalty as
soon as he breaches the civil obligations.
II. LUTYEN HAS ABUSED ITS DOMINANCE IN UHD TV MARKET TO INCREASE ITS SALE IN THE CASTING
DEVICES MARKET BY INDULGING IN A TIE-IN ARRANGEMENT.
The appellant is dominant in the market for the manufacture and sale of UHD TVs in Bohemia
which is evident from its high market shares, consumer preferences and because the market is
characterized by high entry barriers. The appellant has used this dominance to conclude contracts
with distributors that give rise to supplementary obligations having no connection with the nature
of the contract or the commercial usage by mandating them to sell its UHD TV and Tojo Stick as a
package, even when they might be only TV distributors. Further, the arrangement amounts to a tie-
in since consumers are restricted of the choice to buy the UHD TV alone, or with a casting device
from any other manufacturer. Thus, the appellant is trying to leverage its market position to enter
the market for the sale of casting devices in Bohemia. The practice causes AAEC through
foreclosure of competition in the tied market by the elimination of even hypothetical equally
efficient competitors and choice restriction on consumer's part.
III. LUTYEN HAS VIOLATED THE CCB'S ORDER REGARDING CONDITIONAL APPROVAL BY INDULGING IN
AN E XCLUSIVE ARRANGEMENT.
The appellant indulged in an exclusive arrangement between its TVs and the Tojo Stick thereby,
violating the CCB's order for conditional approval under section 31(7) of the Act. The arrangement
does not allow the end-customers to buy the appellant's UHD TV without the Tojo Stick. Further,
the part of the joint penalty imposed under section 42 on the appellant in case no. 1 & 2 of 2018
for violating the order regarding conditional approval is not appealable to NCLAT.
IV. THE RESALE PRICE MAINTENANCE IMPOSED BY LUTYEN VIOLATES THE PROVISION OF THE
COMPETITION ACT , 2002.
The resale price maintenance (hereinafter RPM) arrangement imposed by Lutyen shall have
appreciable adverse effects on competition. It will result in no accrual of benefits to customers due
to increased prices in lieu of undesired services. It will also prevent the more efficient and low-cost
distributors from passing on the benefits to the consumers. By restricting intra-brand competition,
it will also reduce dynamism and innovation at the distributor level. It will drive out existing
competitors, especially the online retailers out of the market, as aggressive pricing is one of their
major competitive strategies. Imposition of RPM by a manufacturer like Lutyen, which has
significant market power shall also lead to foreclosure of smaller rivals as the higher margins will
entice the dealers to promote this brand over others. The imposition of RPM on the request of
certain distributors, which makes it even more harmful. The use of RPM is dispensable to achieve
the alleged efficiencies, as there are less restrictive, more efficient alternatives like promotional
allowances, dealer reimbursements to achieve the intended objectives.
V. SANDY HAS NOT INDULGED IN A REFUSAL TO DEAL U/S 3(4)(D).
The order passed by the CCB will strictly fall under Section 26(8). The right to appeal is not a
natural or inherent right but a statutory right and has to be deciphered taking into account the
whole act and not merely a clause itself. Section 53A does not provide orders passed under the
section 26(8) as an appealable order and therefore NCLAT does not have the jurisdiction to hear the
appeal. Antitrust authorities cannot impinge on the right of an enterprise to choose its dealing
partners. The respondent's conduct will not have exclusionary effects as the appellant have several
sufficient distribution channels to distribute their products. In view of the facts that price restraint
covenants may itself have anti-competitive effects and refusal on the part of the respondent will
have pro-competitive effects.
WRITTEN SUBMISSIONS
ISSUE I. LUTYEN HAS VIOLATED THE GUN-JUMPING PROVISION U/S 43A.
¶1. The respondent humbly submits that the earlier market purchases and the asset purchase
agreement (hereinafter APA) were inter-connected transactions dependent on each other that
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invariably had the same intended effect. The benefit of exemption under Item 1 Schedule 11 was
not available for market purchases as they were a part of the composite combination. Further, the
acquisition of Tojo's casting technology division was notifiable and not exempted under the MCA
notification2 .
A. THE MARKET PURCHASES AND THE APA WERE INTERCONNECTED TRANSACTIONS.
¶2. Where the acquisition takes place in a number of interconnected steps, the party shall file a
single notice covering all these steps3 and consummation of any such step without prior approval of
the commission would be a violation and invite a penalty under the Act.4 The use of the word ‘shall’
in regulation 9(4)5 makes the notification of each step of the composite combination mandatory and
unavoidable at any stage. The mutual dependence or interconnection of a series of transactions
depends on a number of factors like the subject of the transaction, the time gap between the said
transactions, and whether it would be practically reasonable to view the transactions separately,
which require evaluation on the factual matrix of each case.6
¶3. An entity might structure a combination such that on a standalone basis, there is a benefit of
exemption to some steps of the combination; and this could facilitate the structuring of
transactions to evade compliance with the Act and therefore, should not be permissible.7 In EMC8 ,
the Commission held that the same intent and purpose behind the transactions connected them,
even though the first transaction did not mention the second one. In Thomas Cook9 , the
commission regarded the market purchases as an independent transaction because the success or
failure of market purchases would have had no bearing on the notified transaction and the parties
would have proceeded with the second transaction irrespective.
¶4. In the present case, the subject matter of both the market purchases and the APA was
same, the transactions were such intricately related that the execution of APA happened only
because of Lutyen's market purchases, and the return of Lutyen's 12% shareholding in Tojo was
part of the consideration in the APA.10 Further, Lutyen had the intention to acquire controlling rights
over Tojo when it started acquiring Tojo's shares from the open market and therefore, the two
transactions were inter-connected.11
B. ALTERNATIVELY, ITEM 1 SCHEDULE 1 DID NOT EXEMPT THE NOTIFICATION OF THE MARKET
PURCHASES.
¶5. An acquisition of shares, which does not entitle the acquirer to hold more than 25% of the
total shares and does not lead to the acquisition of control over the target enterprise, is exempted
from notification12 , provided that it is ‘solely an investment’ or ‘in the ordinary course of business’.13
i. THE MARKET PURCHASES WERE NEITHER ‘SOLELY AN INVESTMENT’ NOR ‘IN THE ORDINARY COURSE
OF BUSINESS’.
¶6. The term ‘solely an investment’ involves an element of strategic intent. This intent can be
characterized through a number of factors, which include but are not limited to the existence of an
understanding/alliance14 , press release labeling the acquisition as strategic15 or the capacity of
acquirer as a competitor of the target16 .
¶7. In Alibaba/Jasper17 , the parties notified a non-controlling minority acquisition of 4.14% since
the two parties were present in the same market. Acquisitions made in a competing business or in
a vertically related market would not necessarily be termed ‘solely as investment’ even if they meet
the exemption thresholds.18 Even in EU, the minority shareholding in competitors is subject to
investigation since it allows explicit or tacit coordination between the competitors, thereby harming
competition.19 The market purchases were not ‘solely an investment’ since Tojo is not only Lutyen's
competitor in the market for sale and manufacture of TVs in Bohemia but also operates in the
vertically linked market for the sale and manufacture of casting devices.
¶8. Further, an acquisition of less than 10% of total shares of the target is ‘solely an investment’
subject to certain conditions, which includes no intention to participate in affairs and management
of the target.20 However, the present acquisition of shares does not qualify for the exemption since
the Lutyen's board documents and presentations suggest its intention to acquire controlling rights
over Tojo's business.21 The Commission derives intent from circumstantial evidence, which includes
a press release or statement by parties labeling the acquisition as strategic22 or unilateral board
resolutions that qualify as ‘other documents’ under section 6(2)23 and require notification within 30
days of execution, as in the present case.
¶9. Strategic investments in a target company present in the same or vertically linked market or
acquisition of shares of a target directly related to the business activity of the acquirer cannot be
termed ‘solely an investment’ or ‘in the ordinary course of business’.24 Further, an investment in a
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company witnessing declining profits for almost a decade25 would not be a wise decision and as
such, Lutyen's intent was not to invest in Tojo but to acquire controlling rights over the company
and hence, the market purchases do not qualify for an exemption under Item 1 Schedule 1.
C. THE MCA NOTIFICATION DATED 27 MARCH 2017 DID NOT EXEMPT LUTYEN WHICH NOTIFYING THE
ACQUISITION OF TOJO'S CASTING TECHNOLOGY DIVISION.
¶10. The respondent humbly submits that the turnover and assets used as thresholds for
exemption are the total assets and turnover of the target enterprise. The pre-amended statute is
unambiguous and clear in meaning, and a plain reading of the notification dated 4 March 2016
would suggest the use of entire turnover and assets of the target enterprise for determining the
exemption's applicability.26 The Commission also provides a facility for pre-filing consultation
concerning combinations, which was also not availed by the appellant.27 Further, the appellant
consummated the transaction without the approval of the Commission, which clearly indicates its
intention to jump the gun.
i. THE APPLICABLE LAW IS THE PRE-NOTIFICATION LAW WHEN THE CAUSE OF ACTION ARISES.
¶11. The cause of action for proceedings under section 43A arises only when the acquiring entity
has failed to notify the Commission within 30 days of executing the agreement related to the
acquisition under section 6(2). In the present case, the appellant was obligated to notify the
execution of APA within 30 days from 24 February i.e. until 26 March. Therefore, the cause of action
when the thirty-day period ends, as laid down by the CCI.28
¶12. “The penalty is attracted as soon as contravention of the statutory obligations as
contemplated by the Act is established and, therefore, the intention of the parties committing such
violation becomes immaterial.”29 Firstly, the breach of the obligations had already happened when
the law changed and therefore, the levy of penalty is justified under the pre-notification law and
secondly, the failure to notify the acquisition cannot be justified on grounds of bona fide mistake or
indeliberate defiance of the law.
¶13. Further, the parties should also be penalised for violating section 6(2A) and consummating
the transaction without the commission's prior approval, thereby contravening the ex-ante nature
of combination regulations30 , which seeks to check and prevent anti-competitive effects of a
combination before it is given effect so that the effects do not become irrecoverable later.
ii. THE NOTIFICATION AMENDS THE SUBSTANTIVE APPLICATION OF RELEVANT SECTIONS AND
THEREFORE, HAS A PROSPECTIVE OPERATION.
¶14. A substantive change in law can never have a retrospective operation because it seeks to
alter and remedy the existing stance of law.31 It is a well-identified rule of interpretation that unless
a statute amends the matter of procedure, it should apply prospectively; and that if the wording of
the statute could lead to either of the two interpretations, the Courts should construe it as
prospective.32 The notification33 not only changes the manner in which the value of assets and
turnover for application of section 5 is to be determined but also “the principle determining the
applicability of De-Minimis Exception itself”.34 The present notification is only applicable for a period
of five years, which also strengthens the claim that it is not a clarification of the existing law but an
addition instead.35
¶15. The legislation changing the ensuing rights or obligations is prospective in nature unless
the legislative intent shows otherwise.36 The present notification nowhere contains words that show
the legislature's intent to make the notification retrospective in nature. Further, the press release
labeling the notification does not have the force of law and cannot alter the position established by
the statute.37 Therefore, the MCA notification does not apply retrospectively.
ISSUE II. LUTYEN HAS ABUSED ITS DOMINANCE IN UHD TV MARKET TO INCREASE ITS SALE IN THE
CASTING DEVICES MARKET BY INDULGING IN A TIE-IN ARRANGEMENT.
¶16. The respondent humbly submits that the appellant is dominant in the market for the
manufacture and sale of Ultra High Definition Television (hereinafter UHD TVs), evident from its
market share, the size of competitors, and the market structure. Further, the appellant has abused
this dominance through its arrangement of selling the UHD TV and Tojo Stick as a package, which
amounts to a tie-in arrangement that has caused and is likely to cause appreciable adverse effects
on competition (hereinafter AAEC).
A. LUTYEN IS DOMINANT IN THE RELEVANT TYING MARKET FOR MANUFACTURE AND SALE OF UHD TV.
¶17. In order to determine whether an enterprise is abusing its dominant position or not, it is
necessary to first determine the relevant market in which that particular enterprise was alleged to
be in a dominant position.38 The second issue would be whether the enterprise abused its dominant
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position in any manner in that relevant market in terms of Section 4 of the Act.39
i. RELEVANT MARKET.
¶18. The Commission should consider the factors laid down in section 19 while determining the
relevant market (both product market and geographical market).40 It is pertinent to consider the
substitutes available for the product while defining the relevant product market.41 In the present
scenario, the closest substitute available in the upstream market, compatible with the casting
devices is an FHD TV. However, while the end use of the products is same, the quality and price
difference do not provide the required demand-side substitutability42 ; and further, in a tying claim,
the relevant market is the market of tying product since that particular market is subject to
abuse.43 Therefore, the CCB has correctly identified the upstream market as the ‘manufacture and
sale of UHD TV’ and downstream market as the ‘manufacture and sale of casting devices’.
ii. DOMINANCE.
¶19. In a tying claim, it is essential to prove that the enterprise enjoys a dominant position in
the market for the tying product.44 The Commission should consider the various factors laid down in
section 19 while determining whether an enterprise enjoys a dominant position.45
a. MARKET SHARE.
¶20. The existence of a dominant position may derive from several factors which, taken
separately, are not necessarily determinative but among these factors, the existence of very large
market shares is highly important.46 Very large shares are in themselves, and save in exceptional
circumstances, evidence of the existence of a dominant position.47 In the market for manufacture
and sale of UHD TVs in Bohemia, Lutyen has a huge market share of 45% with the rest of market
diffused between several manufacturers in such a way that no manufacturer exerts sufficient
competitive constraints on Lutyen.
b. MARKET STRUCTURE AND ENTRY BARRIERS.
¶21. Where barriers to entry by firms outside the market are high, the fact that one firm has a
very high market share is indicative of significant market power to constitute dominance, where the
barriers to entry include both legal barriers and strategic barriers.48 In a UHD TV market, a new
entrant would require a huge capital for technology, set-up of manufacturing plants, and in the
establishment of a nationwide distribution network, thus making the entry a challenging task.
c. CONSUMER PREFERENCE.
¶22. In the case of British Airways,49 the Court of First Instance held that the assessment of the
dependence relationship between the undertaking in question and its customers is relevant for the
finding of a dominant position in a classical sense. In the present case, the consumers have a
greater preference for Lutyen's products since it is the leading market player, even after Sandy (the
second biggest player) offers greater discounts on its UHD TVs.
B. LUTYEN HAS ABUSED ITS DOMINANCE TO INCREASE ITS SALES IN THE CASTING DEVICES MARKET
U/S 4(2)(D) AND 4(2)(E).
¶23. The Competition Act, 2002 prohibits the abuse of dominant position50 rather than the
dominance itself. Section 4(2)(e) recognizes the fact that an enterprise may use its position of
strength in one market to leverage its position and gain an unfair advantage in the other market.51
Section 4(2)(d) is applicable where a dominant enterprise “makes conclusion of contracts subject to
acceptance by other parties of supplementary obligations which, by their nature or according to
commercial usage, have no connection with the subject of such contracts”.52
¶24. In the distributorship agreement, Lutyen added a clause that the distributors should sell
Lutyen TVs together with the Tojo Stick as a package.53 This is a supplementary obligation by
commercial usage since the TV and the casting device are two separate products that the
distributor may not sell together. Even while selling the two together, the consumers should get the
choice to buy any TV or casting device together.
¶25. Not only does the clause restrict consumer choice but it also does not allow the distributors
to sell any other casting device with Lutyen TVs, thereby creating a situation of exclusivity with the
Tojo Stick. This is against the very nature of operation of independent distributors who provide
several choices with respect to the product they offer. Further, Lutyen's distributorship agreement
is only with respect to the TVs and by providing the casting device as an additional product, along
with the clause to sell both as a package, Lutyen is virtually forcing the distributor to sell an
undesired product if he wants access to Lutyen's UHD TVs.
C. LUTYEN HAS ALSO INDULGED IN A TIE-IN ARRANGEMENT UNDER SECTION 3(4)(A).
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¶26. The respondent submits that Lutyen has indulged in tying of UHD TV and casting devices,
which are two separate products and thus coerced the consumers such that they can only buy the
more preferred UHD TV if they take the Tojo Stick with it. This practice has led to exclusionary
effects in the market for manufacture and sales of casting devices.
i. UHD TV AND CASTING DEVICE ARE TWO DISTINCT PRODUCTS.
¶27. In a tying claim, it is necessary to establish that two products are distinct.54 This
distinctness does not necessarily mean that they have a separate market for sale but depends on
the demand for the product. Evidence that two products are distinct can be direct i.e. whether or
not customers would buy the two products separately if given choice or indirect evidence i.e. the
existence of independent specialized companies that only manufacture the tied product without the
tying product.55 In the present case, a large number of manufacturers only produce the casting
devices without producing the UHD TVs; and RK, a specialized casting device manufacturer, has the
highest market share in casting devices market.56
ii. THE CONDUCT IS COERCIVE TOWARDS THE CONSUMERS.
¶28. There is an assumption of tying if an enterprise with substantial market power over the
tying product does not allow the customers to purchase the tying product without the tied
product.57 The idea that ‘inducement’ or ‘coercion’ i.e. forcing the customers to buy things they do
not want, is a well-regarded exception to the economic principle that lower pricing is equivalent to
consumer welfare.58
¶29. A tie-in arrangement does not require below-cost pricing for a certain period followed by
exclusion of rivals and exorbitant prices in the recoupment period like a conventional predatory
pricing claim.59 “It is enough that the tying arrangement has forced the customer to make a less
than optimal choice in the tied product market.”60 In the present case, the customers cannot obtain
the UHD TV without buying the Tojo Stick with it, and therefore, it is coercive towards consumers
who want to buy Lutyen's UHD TV but another casting device.
iii. THE CONDUCT CAUSES AAEC.
¶30. For a tying claim to be successful, the arrangement should cause or be likely to cause
AAEC. Section 19(3) lays down the factors to determine whether a practice would cause AAEC or
not.
a. IT FORECLOSES COMPETITION IN THE CASTING DEVICES MARKET AND WOULD DRIVE OUT
HYPOTHETICAL EQUALLY EFFICIENT COMPETITORS.
¶31. An enterprise with a dominant position in one market may extend it to a related market,
foreclosing the sales opportunities of its rivals in the tied market, which leads to exclusionary
competitive harm. While disallowing tying arrangements, Courts usually rely on the premise that
packaged discounts can exclude an equally efficient competitor who does not manufacture “equally
diverse group of products”.61 The efficiency arguments about a pro-consumer practice with above-
cost discounts are immaterial when it leads to exclusion of equally efficient rivals.62 Even in cases of
above-cost discounts, a dominant player does not have the freedom to take certain actions that a
company in a competitive market may take because the market conditions are entirely different.63
¶32. To determine whether a practice would exclude equally efficient rivals in the competitive
tied market, the Courts use the discount-attribution test wherein they attribute the total discount
on the package to the tied product.64 If the total discount is more than the production cost of the
tied product, then the practice is deemed to have exclusionary effects.
¶33. In the present case, Lutyen offers the package at the price of the UHD TV alone and
therefore, the total discount is equal to the price of the Tojo Stick. Therefore, the other
manufacturers cannot compete in the casting device market since they would have to offer an
impossible discount equal to the price of Tojo Stick. Thus, Lutyen's practice leads to foreclosure of
competition in the casting devices market by the exclusion of equally efficient competitors evident
from RK's loss of profits65 , who might even be offering a superior product.
b. THERE IS NO ACCRUAL OF BENEFITS TO CONSUMERS AND THE PRACTICE ONLY RESTRICTS
CONSUMER CHOICE.
¶34. Exclusion of an equally efficient rival harms consumers because competition results in
higher quality, lower-priced, and more innovative products. The practice of offering a product at
high discount or zero price for an introductory period is common and works on the principle of
consumer misperception.66 The seller acts on the consumers’ miscalculation of choice that they will
buy the product and terminate their association after the introductory period, which rarely
happens.67 In the present case, Lutyen is offering the Tojo Stick for virtually zero price during the
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introductory period and hence the aforementioned analysis applies perfectly.

¶35. In a tying claim, the plaintiff is only required to prove that the defendant has restricted
consumer choice through coercion to take the tied product, irrespective of its quality, merits or
presence of superior substitutes.68 In the present case, when consumers are purchasing Lutyen's
Ultra HD, the package deprives them of their choice to purchase a casting device other than Tojo
Stick and hence, the arrangement is coercive towards consumers who want to use any other casting
device with the Lutyen's UHD TVs that effectively enjoy great customer preference.
c. IT CREATES BARRIERS TO NEW ENTRANTS IN THE CASTING DEVICES MARKET.
¶36. Where an arrangement provides apparent short-term efficiencies but leads to the creation
of structural entry barriers and exclusion of competitors, the Commission should look beyond the
efficiencies of such anti-competitive arrangement.69 The ‘leverage theory’ states that an enterprise
dominant in the tying market may use it to assume market power in the competitive market for the
tied product through the construction of strategic entry barriers hindering entry into the tying
market, besides the obvious exclusion of incumbent rivals.
¶37. The creation of entry barriers happens when the enterprise provides sufficient discounts on
the tied product by transferring greater part of the potential losses (or reduced profits) to the
dominant tying product.70 Further, if the tying market has entry barriers, like the UHD TV market in
the present case, then the new entrant in the tied product market would not be able to overcome
the short-term losses because it does not have such diversified product offering.
d. QUALITY CONTROL IS NOT A VALID DEFENSE WHEN LUTYEN COULD HAVE ADOPTED LESS
RESTRICTIVE MEANS.
¶38. The Courts have repeatedly rejected the quality control defenses where the tying
arrangement was not necessary and there were alternatives to protect quality.71 In IBM72 , the Court
even went on to state that quality control could never be a valid defense to any exclusionary anti-
competitive practice and there is no valid ground for an exception where goodwill is not at stake or
a less restrictive alternative exists.
¶39. When the customer bears the consequences of choosing a bad product, he will reasonably
buy the second product with best rate-quality match.73 Even when the second product's quality
directly affects the performance of the first product, the appellant could have easily withdrawn from
the quality protection exercise through a disclaimer of specifications for the second product to work
perfectly well with the first product, without coercing the customer to buy the second product from
him.74 If a rival in the tied market can supply the tied product of the same quality, there exists no
rationale for tying.75 In the present case, the Lutyen's UHD TV is compatible with other casting
devices in the market. In fact, RK's casting device is the most preferred casting device by
consumers and a mere statement of the specifications of casting devices best compatible with
Lutyen's UHD TV would have sufficed, without restricting the competition in the market
ISSUE III. LUTYEN HAS VIOLATED THE CCB'S ORDER REGARDING CONDITIONAL APPROVAL BY
INDULGING IN AN EXCLUSIVE ARRANGEMENT.
¶40. The respondent humbly submits that Lutyen has violated the CCB's order for conditional
approval. The CCB had granted approval to the combination under section 31(7) of the Act, made
contingent upon conditions that the appellant would not indulge in an exclusive arrangement
between its televisions and Tojo Stick and that the Tojo Stick would remain compatible with other
brand's TVs.76
¶41. However, the appellant has not respected its commitments, subject to which the CCB had
approved the combination under section 31(7) of the Act, by indulging in an exclusive
arrangement. While evaluating whether a combination is likely to cause AAEC, the CCB is free to
allow the combination after forbidding any practice that will lead to AAEC in those circumstances,
even if it is neither ordinarily covered nor punishable under Act.77 Even the fundamental right to
trade lays down certain exceptions, which includes an existing law restricting the absolute exercise
of the freedom.78 The practice is exclusionary since the customer's choice to obtain the UHD TV with
a casting device other than Tojo Stick is restricted and it has caused AAEC as proved in [II. C. iii].
A. THE PART OF JOINT PENALTY CORRESPONDING TO THE VIOLATION OF CCB'S ORDER REGARDING
CONDITIONAL APPROVAL IS NOT APPEALABLE.
¶42. The CCB imposed a joint penalty in Case No. 1 and Case No. 2 of 2017.79 The CCB had
found the appellant in violation of its order under section 31 of the Act regarding conditional
approval, which would invite a penalty under section 42 since the use of the word ‘shall’80
mandates that the defaulter should be penalized. Therefore, a part of the joint penalty was under
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section 42 of the Act for violating CCB's order for conditional approval of the acquisition under
section 31(7) of the Act.
¶43. The relevant provisions of law may take away the right to appeal, which is a statutory
right.81 When the legislature had specifically mentioned appealable orders and directions, it
intended to exclude all the other orders from the appeal and that any other construction with
respect to the Act would make the application and wording of Section 53B futile.82 Therefore, this
part of the penalty imposed under section 42 is not appealable to NCLAT and the decision of the
CCB is final and binding on the appellant.
ISSUE IV. THE RESALE PRICE MAINTENANCE IMPOSED BY LUTYEN VIOLATES THE PROVISION OF THE
COMPETITION ACT , 2002.
¶44. The respondents humbly submit that Lutyen TV by indulging in Resale Price Maintenance
(hereinafter RPM) which is prohibited under Section 3(4)(e) of the Competition Act is causing
appreciable adverse effects to competition in Bohemia.
¶45. The definition of RPM under Explanation (e) to Section 3(4) of the Act83 included “any
agreement to sell goods on condition that the prices to be charged on the resale by the purchaser
shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those
prices may be charged”.
¶46. By fixing the maximum resale price as well as the maximum amount of discount, the
manufacturer can effectively fix the minimum resale price. An agreement that has the direct or
indirect object of establishing a fixed or minimum resale price level may restrict competition. This
would include fixing the distribution margin or the maximum level of discount.84
A. THE RPM AGREEMENT CAUSES AAEC.
¶47. The respondents humbly submit that the appellant is indulging in RPM by mandating the
maximum permissible discounts on its products, which is causing AAEC in Bohemia.
¶48. In Bajaj85 , it was established that in order to determine if the agreements entered between
a manufacturer and its distributors are in the nature of ‘resale price maintenance’, the factors listed
in 19(3) need to be satisfied in order to prove AAEC is caused in the market. It is pertinent to note
that clauses (a)- (c) of section 19(3) deal with factors which restrict the competitive process in the
markets where the agreements operate (negative factors) while clauses (d)-(f) deal with factors
which enhance the efficiency of the distribution process and contribute to consumer welfare
(positive factors).
¶49. The criteria set out to gauge the possible anti-competitive effects include the presence of
significant unilateral upstream market power.86 Where barriers to entry by firms outside the market
are high, the fact that one firm has a very high market share is indicative of significant market
power.87
¶50. In addition to possession of 45% market shares by Lutyen88 , the barriers to entry are high.
In a UHD TV market, a new entrant would require a huge capital for technology, set-up of
manufacturing plants, and in the establishment of a nationwide distribution network, thus making
the entry a challenging task.
¶51. In the present case, the anti-competitive effects generated due to RPM clearly outweigh any
pro-competitive effects, which may arise because of this practice.
i. RPM SHALL DRIVE OUT EXISTING COMPETITORS, WILL LEAD TO FORECLOSURE OF COMPETITION,
AND WILL NOT IMPROVE THE DISTRIBUTION SYSTEM.
¶52. The respondents humbly submit that this RPM agreement shall have a detrimental effect on
existing competitors resulting in their exit from the market. It is widely acknowledged that Internet
retailers’ overall lower prices, made possible by their substantially lower operating costs, are a
source of competitive advantage for the sector. In banning discounts, RPM would eliminate this
inherent advantage89 and because the nature of the services that the manufacturer may want to
ensure is such that Internet retailers are physically incapable of providing them, RPM will not
succeed in inducing these services from them and will ultimately drive them out of the competition.
¶53. Consumers are deceived when multi-brand dealers recommend a brand solely because of
insulation from intra-brand price competition.90 Hence, a manufacturer with sufficient market power
may implement RPM to foreclose competition from smaller rivals. The increased margin that RPM
may offer distributors, may entice the latter to favor the particular brand over rival brands when
advising customers, even where such advice is not in the interest of these customers, or not to sell
these rival brands at all. The respondents humbly submit that imposition of RPM by Lutyen, which
has significant market power shall have exclusionary effects on smaller rivals as the distributors in
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Bohemia will be tilted towards promoting Lutyen's brand due to the increased margins.
¶54. The RPM imposed by Lutyen shall also lead to reduced dynamism and innovation at the
distribution level. By restricting price-competition between distributors, RPM hinders the incentives
of more efficient retailers from entering the market and acquiring sufficient market power through
low prices.91 Permitting price competition for popular brands as Lutyen would encourage new or
existing multi-brand dealers to develop innovative and cost-efficient ways to provide different
services92 but restricting price competition shall leave little incentives for such innovation.
¶55. The respondents submit that a vertical restraint may be identical to that to which a wiser
manufacturer would have adopted on its own. However, such restraints must be doubted where a
manufacturer does not itself desire it.93
¶56. RPM, when enforced at the instance of the distributors/dealers, is particularly problematic
since it helps maintain the collective interest of the downstream players, i.e. the distributors, to
maintain higher resale prices, causing consumer harm.94 In that instance, the manufacturer does
not establish the practice to stimulate services or to promote its brand but to give inefficient
retailers higher profits. It would prevent the retailers with better distribution systems and lower
cost structures from charging lower prices by the agreement. It prevents dealers with lower cost
structures from passing on their superior efficiency to the consumer.95 In the present case, efficient
online & offline (Sandy) distributors are being denied the opportunity to pass on their efficiency
benefits to the consumers, which inevitably leads to consumer harm.
¶57. If there is any evidence suggesting that retailers were the impetus for a vertical price
restraint, there is a greater likelihood that the restraint supports an inefficient retailer.96 The use of
RPM to sustain this collusion, resulting in price increases, causes consumer harm.97 Lutyen imposed
RPM on the request of certain distributors.98 As a result, even the distributors operating efficiently
and on low-cost have to charge higher prices to the consumers.
ii. RPM SHALL NOT LEAD TO ANY ACCRUAL OF BENEFITS TO THE CONSUMERS.
¶58. RPM decreases the pricing pressure on competing manufacturers when a dominant player
imposes minimum selling price restrictions in the form of maximum discount that the dealers can
offer. Preventing price competition on a popular brand would result in higher prices of competing
brands as well. Thus, minimum retail price RPM has the effect of reducing inter-brand price
competition in addition to reducing intra-brand competition.99 The RPM arrangements will lead to
higher prices of competing brands as Lutyen is the largest television manufacturer in Bohemia and
has gained significant market power in the market of sale of UHD Televisions across Bohemia in the
last few years.100
¶59. Price is the ‘central nervous system’ of the economy101 and the consistently and
substantially higher prices that result from restrictions on price competition are suggestive of anti-
competitive effects.102 The direct effect of RPM is a price increase.103 It is difficult to see what
‘enhanced value’ consumers would receive in return for increased prices. RPM does not guarantee a
high quality of services on the distributor's end. He may choose to provide no services at all and
sell the product at a higher resale margin104 , which would definitely be against consumer interest.
In the present case, Sandy Home Store has a large portfolio enjoying economies of scale105 and
possesses a ‘retailer brand image’. The discounts provided are a part of its business strategy and in
no way suggests lack of services. While protection of provision of services may indeed be in the
interest of manufacturers, such services need not be worth their price to the consumers who
receive.106 The respondents humbly submit that the price rise would not be worth the services that
it would generate and the increased prices would not accrue any benefits to the consumer.
¶60. The welfare effects of restraints encouraging dealer services are ambiguous when
consumers differ in their desire for service as it deprives them of the choice to obtain the product at
a lower price without unwanted services. Product demonstration is superfluous for customers who
already know the product's features. High price worsens the welfare of these consumers by forcing
them to pay for services they do not desire. Any benefit for the new customer must be weighed
against the adverse impact on the welfare of the ‘non-marginal’ consumer. Finally, to the extent
that RPM prevents more efficient dealers from offering consumers desired services at lower prices,
even those desiring the services suffer.107 In the present case, the choice of consumers who are
well aware of the specifications and technicalities are restricted when they are forced to pay for
these services. Further, Lutyen is also preventing the efficient dealers like Sandy from offering the
services at a lower price, which again harms even those consumers who desire these services.
¶61. The ‘free-rider’ problem is one reason manufacturers might want to introduce resale price
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maintenance.108 However, a familiar product like a TV does not need complex, free-rideable
services. Moreover, the abundance of information available online should diminish the need for in-
store demonstrations or knowledgeable sales assistance and, thus, the frequency of free riding.109
RPM will anyway fail to control free riding as even if the manufacturer does not permit the would-be
free rider to lower its price, he can evade price restriction by offering the price-restricted good
together with a related product at a price below the combined prices of the separate items.110
Further, even if the free-rider effect is assumed prevalent, it can be more effectively avoided
through less restrictive means that may include dealer reimbursements including the mandatory
services, which would ensure specified services and eliminate the free-rider effect.
iii. RPM IS DISPENSABLE TO ACHIEVE THE SAID EFFICIENCIES DUE TO THE PRESENCE OF LESS
RESTRICTIVE ALTERNATIVES.
¶62. The respondents humbly submit that even if Lutyen's objective to impose RPM is to ensure
better services, there are least restrictive alternatives available to achieve it. If the application of
what appears to be a commercially realistic and less restrictive alternative would lead to a
significant loss of efficiencies, the restriction in question is indispensable.111 In the present case,
RPM is dispensable because a more efficient and less restrictive alternative is present in the form of
promotional allowances, including specified service in agreements, dealer reimbursements.
¶63. Promotional allowances essentially compensate retailers for specific services and do not
restrain their freedom to price the manufacturer's products as they see fit.112 In addition to being
less restrictive, promotional allowances are probably more efficient and effective than RPM
agreements. Internet and brick-and-mortar retailers provide very different types of services
(involving different costs) for a manufacturer. Promotional allowance programs would permit a
manufacturer to distinguish between these services and tailor the payments accordingly.113
ISSUE V. SANDY HOME STORE HAS NOT INDULGED IN A REFUSAL TO DEAL U/S 3(4)(D).
¶64. The respondents humbly submit that the NCLAT has no jurisdiction to hear an appeal
against an order not mentioned in section 53A. Sandy's refusal to deal is justified since it was in
response to unfair restriction in the distribution of the appellant's product. The conduct does not
amount to a refusal to deal when it is the outcome of non-adherence to some restrictive covenant
such as resale price maintenance.114
A. THE NCLAT HAS NO JURISDICTION TO HEAR THE APPEAL.
i. CCB IS FREE TO PASS AN ORDER AGAINST THE DG'S REPORT.
¶65. The purpose of the Act is to protect the interests of the consumers and to ensure freedom
of trade carried on by other participants in markets, to achieve this objective the Act makes CCB a
quasi-judicial body.115 The Act vests CCB with powers of adjudication and passing orders. Therefore,
it will be right to interpret that CCI has the power to take any decision as it may deem fit after the
DG's report. In addition, since CCB is a quasi-judicial body it should adhere to the principles of
natural justice.116 CCB's orders should not be under the compulsion of the DG's report since DG is
the mere investigative arm and the adjudicatory process entire lies in CCB's hands.117
ii. CCB HAS PASSED THE ORDER U/S 26(8).
¶66. Section 26(8) is the only possible section wherein CCB can pass such orders. Only another
possible section that envisages such an order is section 27, though it becomes impossible to
interpret this order under that section because the language of 27 is very clear as to what it
provides for in the main text of the section. The CCB cannot use the marginal note in an Indian
Statute for construing the statute118 and it cannot certainly control the meaning of the body of the
section if the language employed therein is very clear.119 The language of section 27 is very clear in
the aspect that the section deals only with situations where the commission after the DG's
investigation finds that there is a contravention of section 3 and 4 of the Act.
iii. THE ORDER IS NOT APPEALABLE TO NCLAT.
¶67. Further, the right to appeal is not a natural or an inherent right. It is a statutory right,
strictly controlled by the provisions of the relevant Act and the procedure provided therein.120
Therefore, even under the Competition Act, Section 53A provides the right to appeal to NCLAT. This
section of the Act provides the right to appeal only against certain orders of the Commission and
does not include section 26(8).
¶68. Therefore, by resorting to a harmonious and purposive interpretation, relying on the
purpose of the Act and the legislative intent, it is clear that the said order passed by the CCB was
under Section 26(8). Section 53A does not provide for an order passed under the section 26(8) as
an appealable order. Therefore, the appeal is not maintainable, as the NCLAT does not have the
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jurisdiction to hear the matter.

B. SANDY'S CONDUCT DOES NOT AMOUNT TO A REFUSAL TO DEAL.
i. AN ENTERPRISE HAS THE FREEDOM TO CHOOSE TRADING PARTNERS.
¶69. Competition law does not impinge on companies’ choices to deal, or not to deal, with other
companies.121 One of the most unsettled areas of antitrust law has to do with the duty of a firm to
deal with its competitors. In general, a firm has no duty to deal with its competitors.122 In fact,
imposing obligations on a firm to do business with its rivals is at odds with other antitrust rules
that discourage agreements among competitors that may unreasonably restrict competition.123
Labeling practices like refusal to deal with competitors as automatically abusive would encroach on
important legal principles such as contractual freedom.124
ii. REFUSAL TO DEAL BECAUSE OF A LEGITIMATE BUSINESS REASON IS JUSTIFIED.
¶70. If the dominant firm refuses to deal in a competitor's products or stops providing services
that it makes available to others, or if the dominant firm has done business with the competitor and
then stops, the firm needs a legitimate business reason for its policies.125 In Socony126 , the court
emphasized that formulation of the price-fixing agreement is itself an offense. However, non-
performance might imply abandonment and would mean that no damage resulted. The appellant
may not use coercion on its retail outlets to achieve RPM127 . The coercive device may exist in any
form128 , which includes a clause in the distributorship agreement. It is further submitted that the
present contract purporting to bind the dealer does confine its future freedom of action, which
would not be limited were it merely to adopt a suggested price at its pleasure and only for as long
as desired.
¶71. Further, the respondent did stock the appellant's product in its showrooms129 until the
discount restrictions were included in its distributorship agreement, which mandated distributors
not to give discounts exceeding 10%. This was against the business model of the respondent
through which it had made its reputation in the market for distribution of home electronics and any
action against this model would adversely affect its reputation in the end. Unrestricted pricing
offers consumers with more options and therefore, leads to better competition and any interference
would adversely affect consumer welfare.130
iii. THE CONDUCT MAKES PERFECT ECONOMIC SENSE.
¶72. A short-run profit sacrifice is not necessary for conduct to be exclusionary by the “no
economic sense” test because the anti-competitive gains from exclusionary conduct sometimes lead
to immediate gains.131
¶73. The application of the “no economic sense” test is conceptually straightforward. If the firm
refusing to deal earlier profitably dealt with its competitor earlier and later stopped, the Courts
should look to find out whether it deliberately sacrificed its profits to exclude its competitors.132 In
the present case, though the respondent profitably dealt in appellant's product earlier, continued
dealing after the discount restrictions would be against its business model and harmful for its
reputation in the end and therefore, the conduct makes perfect economic sense.
C. THE CONDUCT IS NOT ANTI-COMPETITIVE.
i. THERE ARE ALTERNATIVES TO SANDY'S DISTRIBUTION NETWORK.
¶74. A refusal to deal cannot be anti-competitive unless it has exclusionary effects leading to the
elimination of competition from the market, and thereby reducing the number of alternatives and
restricting consumer choice in the market. It cannot exclude rivals unless the facilities provided by
the defendant are essential to carry out that particular trade in the specific area.133 The refused
product must constitute an objectively indispensable input for such competitors, and not merely a
particularly suitable or convenient one.134 In the present case, there are various other distribution
channels available for the effective distribution of the appellant's products and therefore, Sandy's
distribution network is dispensable to carry out the business of sale and manufacture of UHD TVs in
Bohemia.
ii. SANDY'S DOMINANT DISTRIBUTION NETWORK IS NO GROUND FOR PENALIZING ITS REFUSAL.
¶75. Firms may acquire dominant position by establishing an infrastructure that renders them
uniquely suited to serve their customers. Compelling such firms to share the source of their
advantage is in some tension with the purpose of the antitrust laws, since it may lessen the
incentive for the dominant firm, the rival, or both to invest in these economically beneficial
facilities.135 Enforced sharing also requires antitrust courts to act as central planners, identifying the
proper price, quantity, and other terms of dealing, a role for which they are ill-suited. Moreover,
compelling negotiation between competitors may facilitate the supreme evil of antitrust :
-----------------------------------------------------------------------------------------------------------------------------------------------------------
collusion.136 Thus, the mere fact that by retaining a facility for its own use a dominant undertaking
retains an advantage over a competitor cannot justify requiring access to it.137
¶76. The respondent submits that the appellant on the request of certain distributors added a
discount restriction clause to the distributorship agreement and this may amount to collusion
between the manufacturer and distributors.138 Such collusion may harm the respondent because by
harming its business model as per which it has the potential to provide higher discounts.139 Such
restraints will effectively increase the cost of UHD TVs in the market and therefore, harm the
consumer welfare.
PRAYER
Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities
cited, this Hon'ble Court may be pleased to adjudge and declare that:
In Lutyen v. CCB:
• The market purchases and the APA were inter-connected transactions.
• Item 1 Schedule 1 of the Combination Regulations did not exempt the market purchases from
notification.
• The MCA notification did not exempt the APA from notification.
• The MCA notification is not applied retrospectively.
• Affirm the CCB's order.
In Lutyen v. Sandy & RK & CCB:
• Lutyen is dominant in the market for sale and manufacture of UHD TV in Bohemia.
• Lutyen's conduct amounts to a tie-in arrangement since it would cause AAEC.
• Lutyen has abused its dominance in the UHD TV market to increase its sale in the casting
devices market.
• Lutyen's conduct amounts to Resale Price Maintenance since it would cause AAEC.
• Lutyen has indulged in an exclusive arrangement and therefore, violated the conditions for the
approval of the acquisition.
In Lutyen v. Sandy & CCB:
• The CCB's order is not appealable.
• Sandy's conduct does not amount to a refusal to deal.
1
Combination Regulations 2011, Item 1 Schedule 1.
2
Moot Proposition, ¶ 8.
3
Combination Regulations 2011, reg 9(4).
4
Etihad order u/s 43A, Combination Registration No C-2013/05/122.
5
Combination Regulations 2011, reg 9(4).
6Thomas Cook order u/s 43A, Combination Registration No C-2014/02/153; Vedanta order u/s 31(1), Combination Registration No
C-2012/03/45.
7
Thomas Cook order u/s 43A, Combination Registration No C-2014/02/153; Piramal Enterprises order u/s 43A, Combination
Registration No C-2015/02/249.
8
EMC order u/s 43A, Combination Registration No C-2015/07/293.
9 Thomas Cook (India) Limited v. CCI Appeal No 48/2014 (COMPAT).
10
11
12
The Competition Act 2002, § 6(2).
13 Combination Regulations 2011, Item 1 Schedule 1.
14
Sumitomo Mitsui/Reliance Capital order u/s 31(1), Combination Registration No C-2014/12/235.
15
Piramal Enterprises order u/s 31(1), Combination Registration No C-2015/02/249.
16
Abbot/Mylan order u/s 31(1), Combination Registration No C-2014/08/202; Alibaba/Jasper Infotech order u/s 31(1),
Combination Registration No C-2015/08/301.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
17 Alibaba/Jasper Infotech order u/s 31(1), Combination Registration No C-2015/08/301.

18
EMC order u/s 43A, Combination Registration No C-2015/07/293.
19
European Commission, ‘White Paper : Towards more effective EU merger control’ 2014.
20
Combination Regulations 2011, Item 1 Schedule 1 Explanation (A).
21
22 Piramal Enterprises order u/s 31(1), Combination Registration No C-2015/02/249.
23
GE Energy order u/s 43A, Combination Registration No C-2015/01/241.
24
ITC order u/s 43A, Combination Registration No C-2017/02/485.
25
26
MCA Notification SO 674(E) (4 March 2016).
27
Competition Commission of India, ‘Consultation prior to filing of notice of the proposed combination under section 6(2)’ (25 May
2011) <www.cci.gov.in/sites/default/files/faq/ConsultationPrior250511.pdf>.
28
29
The Chairman SEBI v. Shriram Mutual Fund (2006) 5 SCC 361.
30
SCM Soilfert Ltd v. CCI Appeal No 59/2015 (COMPAT).
31
Union of India v. IndusInd Bank Limited (2016) 9 SCC 720.
32
Shyam Sunder v. Ram Kumar (2001) 8 SCC 24.
33
34
35
MCA Notification SO 988(E) (27 March 2017).
36 CIT v. Vatika Township Private Limited (2015) 1 SCC 1.
37
CIT Mumbai v. Anjum MH Ghaswala (2002) 1 SCC 633.
38
Vikrant Bhagi v. Media Video Limited Case No 28/2013 (CCI); Brown Shoe Co v. US 370 US 294 (1962); US v. Grinnell Corp 384
US 563 (1966).
39
Deepa Narula v. Taneja Developers and Infrastructures Ltd Case No 22/2012 (CCI).
40
The Competition Act 2002, § 19(6), 19(7).
41
Case 27/76 United Brands & Co v. Commission 1978 ECR 207.
42
Om Datt Sharma v. Adidas AG Case No 10/2014 (CCI); Case 27/76 United Brands & Co v. Commission 1978 ECR 207.
43
Illinois Tool Works Inc v. Independent Ink Inc 126 S Ct 1281, 1293 (2006).
44
Illinois Tool Works Inc v. Independent Ink Inc 126 S Ct 1281, 1293 (2006).
45 The Competition Act 2002, § 19(4).
46Case 85/76 Hoffmann-La Roche v. Commission 1979 ECR 461, ¶ 41; Case T-30/89 Hilti AG v. Commission (1991) 2 ECR 1439, ¶
90.
47
Case 85/76 Hoffmann-La Roche v. Commission 1979 ECR 461, ¶ 41.
48European Commission, ‘DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses’
2005, ¶ 34-40; ESYS Information Technologies Pvt Ltd v. Intel Technologies Case No 48/2011 (CCI).
49
Virgin Atlantic v. British Airways (2000) OJ L 30/1, ¶ 220.
50
The Competition Act 2002, § 4(1).
51
MCX Stock Exchange Ltd v. National Stock Exchange of India Ltd Case No 13/2009 (CCI).
52
The Competition Act 2002, § 4(2)(d).
53
-----------------------------------------------------------------------------------------------------------------------------------------------------------
54 Case T-201/04 Microsoft v. Commission (2007) 2 ECR 3601.

55
European Commission, ‘DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses’
2005, ¶ 185-186.
56
Moot Proposition, ¶ 15; Clarification 21.
57
Northern Pacific Railway Company v. US 356 US 1 (1958).
58
Case 85/76 Hoffmann-La Roche v. Commission 1979 ECR 461.
59
Nobody in Particular Presents v. Clear Channel Communications 311 F Supp 2d 1048, 1091-92 (D Colo 2004).
60
Jefferson Parish Hospital v. Hyde 466 US 2 (1984); Fortner Enterprises Inc v. United States Steel Corp 394 US 495 (1969).
61
LePage's Inc v. 3M 324 F 3d 141, 155 (3rd Cir 2003).
62
Virgin Atlantic Airways Ltd v. British Airways 257 F 3d 256 (2nd Cir 2000); Advo Inc v. Philadelphia Newspapers Inc 51 F 3d
1191 (3rd Cir 1995); Ortho Diagnostic Systems Inc v. Abbot Labs Inc 920 F Supp 455, 471 (SDNY 1996).
63
Aspen Skiing Co v. Aspen Highlands Skiing Corp 472 US 585 (1985).
64
Cascade Health Solutions v. PeaceHealth 502 F 3d 895, 916 (9th Cir 2007).
65
66
Oren Bar-Gill, ‘Bundling and Consumer Misperception’ (2006) 71(1) The University of Chicago Law Review 33, 47.
67
Oren Bar-Gill, ‘Bundling and Consumer Misperception’ (2006) 71(1) The University of Chicago Law Review 33, 47.
68
Jefferson Parish Hospital v. Hyde 466 US 2 (1984); Fortner Enterprises Inc v. United States Steel Corp 394 US 495 (1969)
(White dissenting).
69
Shamsher Kataria v. Honda Siel Cars India Ltd Case No 3/2011 (CCI).
70
Antitrust Modernization Commission, ‘Report and Recommendations’ 2007, 95-96.
71
International Salt Company v. US 332 US 392 (1947); IBM Corporation v. US 298 US 131 (1936).
72
IBM Corporation v. US 298 US 131 (1936).
73Herbert Hovenkamp, ‘Tying Arrangements and Lawful Alternatives : Transaction Cost Considerations’ (20 February 2011)
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1763386>.
74
Jefferson Parish Hospital v. Hyde 466 US 2 (1984); In re Data General Corporation Antitrust Litigation 490 F Supp 1089 (ND Cal
1980); International Salt Company v. US 332 US 392 (1947).
75
Carpa v. Ward Foods 536 F 2d 39, 47 (5th Cir 1976).
76
77
Sun Pharma/Ranbaxy order u/s 31(7), Combination Registration No C-2014/05/170.
78
The Constitution of India 1950, art 19(6).
79
80
The Competition Act 2002, § 42.
81
Super Cassettes Industries Limited v. State of UP (2009) 10 SCC 531.
82
CCI v. SAIL (2010) 10 SCC 744.
83
The Competition Act 2002, § 3(4)(e).
84
Fx Enterprise Solutions India v. Hyundai Motor India Ltd Case No 36 & 82/2014 (CCI).
85
Shri Ghanshyam Dass Vij v. Bajaj Corp Ltd Case No 68/2013 (CCI).
86
OECD, ‘Policy Roundtables Resale Price Maintenance’ 2008, 274.
87
ESYS Information Technologies Pvt Ltd v. Intel Technologies Case No 48/2011 (CCI).
88
89
Marina Lao, ‘Resale Price Maintenance : The Internet Phenomenon and ‘Free Rider’ Issues’ (2010) 55 Antitrust Bulletin 473.
90
Phillip Areeda & Herbert Hovenkamp, Antitrust Law : An Analysis of Antitrust Principles and their Application (2nd edn, Aspen
Publishers 2004).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
91
European Commission, ‘Guidelines on Vertical Restraints’ 2010, ¶ 224.
92
Robert Steiner, ‘How Manufacturers deal with Price Cutting Retailers : When are Vertical Restraints Efficient?’(1997) 65
Antitrust Law Journal 407.
93
Publishers 2004).
94 Fx Enterprise Solutions India v. Hyundai Motor India Ltd Case No 36 & 82/2014 (CCI).
95
Eric Gippini-Fournier, ‘Resale Price Maintenance in the EU : in statu quo ante bellum?’ (21 September 2009)
96
Leegin Creative Leather Products Inc v. PSKS Inc 551 US 877 (2007).
97 OECD, ‘Policy Roundtables Resale Price Maintenance’ 2008, 218.
98
99
Fx Enterprise Solutions India v. Hyundai Motor India Ltd Case No 36 & 82/2014 (CCI).
100
101
United States v. Socony Vaccum Oil Co 310 US 150 (1940).
102
Marina Lao, ‘Free Riding : An Overstated, and Unconvincing, Explanation for Resale Price Maintenance’ (16 December 2007)
103
European Commission, ‘Guidelines on Vertical Restraints’ 2010, ¶ 224.
104
Mart Kneepkens, ‘Resale Price Maintenance : Economics Call for a More Balanced Approach’ (2007) 28 European Competition
Law Review 657.
105
106
Howard Marvel, ‘The Resale Price Maintenance Controversy : Beyond the Conventional Wisdom’ (1994) 63(1) Antitrust Law
Journal 59.
107
Publishers 2004).
108
MA Utton, Market Dominance and Antitrust Policy (2nd edn, Edward Elgar Publishing 2003) 245.
109
110
Benjamin Klein & Kevin Murphy, ‘Vertical Restraints as Contract Enforcement Mechanisms’ (1988) 31(2) The Journal of Law and
Economics 265.
111 European Commission, ‘Guidelines on Vertical Restraints’ 2010, ¶ 125.

112
Robert Steiner, ‘Manufacturers’ Promotional Allowances, Free Riders and Vertical Restraints’ (1991) 36(2) Antitrust Bulletin 383.
113
114
SM Dugar, Guide to Competition Law (6th edn, Lexis Nexis 2016).
115
CCI v. SAIL (2010) 10 SCC 744.
116 Rama Varma Bharathan Thampuram v. State of Kerala (1979) 4 SCC 782.
117
CCI v. SAIL (2010) 10 SCC 744.
118
Guntaih v. Hambamma (2005) 6 SCC 228.
119
Nandani Satpathy v. PC Dani (1978) 2 SCC 424 : AIR 1978 SC 1025.
120
CCI v. SAIL (2010) 10 SCC 744; Vikram Sobti & Kanika Chaudhary, ‘Analysis of the Verdict of the Apex Court in CCI v. Steel
Authority of India Limited’ (23 May 2011)
<http://www.indialawjournal.org/archives/volume4/issue_2/article_by_vikram_kanika.html>.
121
Alison Jones & Brenda Sufrin, EU Competition Law : Text, Cases and Materials (4th edn, Oxford University Press 2010).
122
123
124 Case T-41/96 Bayer AG v. Commission (2000) 2 ECR 3383, ¶ 180.
125
-----------------------------------------------------------------------------------------------------------------------------------------------------------
126
United States v. Socony Vacuum Oil Co 310 US 150 (1940).
127
Simpson v. Union Oil Co 377 US 13 (1964).
128
Simpson v. Union Oil Co 377 US 13 (1964).
129
130
Marina Lao, ‘Internet Retailing and Free Riding : A Post-Leegin Antitrust Analysis’ (2011) 14 Journal of Internet Law 1, 19.
131
Thomas Krattenmaker & Steven Salop, ‘Anticompetitive Exclusion : Raising Rivals Costs to Achieve Power over Price’ (1986) 96
Yale Law Journal 209, 224; Brooke Group Inc v. Brown & Williamson Tobacco Corp 748 F Supp 344, 354 (MDNC 1990).
132
133
134
OECD, ‘Policy Roundtables on Refusal to Deal’ 2007, ¶ 15; Case 7/97 Oscar Bronner v. Mediaprint Zeitungs (1998) 1 ECR 7791,
¶ 43.
135
Verizon Communications Inc v. Law Offices of Curtis Trinko LLP 540 US 398 (2004).
136
Verizon Communications Inc v. Law Offices of Curtis Trinko LLP 540 US 398 (2004).
137
Case 7/97 Oscar Bronner v. Mediaprint Zeitungs (1998) 1 ECR 7791.
138
139
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Page 1 Saturday, February 18, 2023

9th NLUJ Antitrust Moot, 2018

BEFORE THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL, BOHEMIA

iii. The conduct causes AAEC. 13

MDNC Middle District of North Carolina

Case 85/76 Hoffmann-La Roche v. Commission 1979 ECR 461 9,

The Competition Act 2002 3,

introductory period and hence the aforementioned analysis applies perfectly.

jurisdiction to hear the matter.

17 Alibaba/Jasper Infotech order u/s 31(1), Combination Registration No C-2015/08/301.

54 Case T-201/04 Microsoft v. Commission (2007) 2 ECR 3601.

111 European Commission, ‘Guidelines on Vertical Restraints’ 2010, ¶ 125.

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