FTC Finds that McWane, Inc. Engaged in Exclusive Dealing to Unlawfully Maintain its Monopoly, but ALJ's Dismissal of Price-Fixing Claims Stands

On February 6, the Federal Trade Commission released its opinion and final order in its case against McWane, Inc., a manufacturer of waterworks products. The Commission dismissed six of the seven counts against McWane. As we discussed previously with respect to the Initial Decision, the McWane case reflects the FTC's ongoing concerns about loyalty rebate programs and other conduct that may be seen to promote de facto exclusivity when undertaken by firms with high market shares. The decision is also noteworthy because the Commission did not reverse the Administrative Law Judge's dismissal of the price-fixing claims, effectively siding with the defendants and against complaint counsel for the first time in many years.