Search

Increasing concern about economic inequality has coincided with an unsettling ascendancy of some large, technologically integrated "super-firms," which have grabbed large market shares in multiple markets, and cast doubt upon the future viability of a wide range of businesses, many of which have been important local and regional employers. It is thus unsurprising that these two trends have knocked together in public discourse, and that antitrust law been proposed as one way of helping to remedy economic inequality. This essay notes that antitrust law is generally a poor fit for reducing economic inequality, but one aspect is worthy of note: an apparent increase in the capital-labor ratio in many industries, especially in technological industries, where super-firms are predominant. An increase in the capital-labor ratio, which is putatively efficient but which may have the effect of suppressing wages, coincides with an increase in industrial concentration, suggesting that the overlap between antitrust law and economic inequality is not the null set. This essay builds on the work of many antitrust scholars in calling for a broader range of considerations in adjudicating antitrust cases. The possibility that antitrust law is playing a role in increasing the capital-labor ratio and changing the structure of economies is dangerous enough that some change in antitrust law is warranted to address foreseeable effects. [ABSTRACT FROM AUTHOR]

In the 2015 case Huawei/ZTE, the Court of Justice of the European Union took one of its rare opportunities to rule on the interface of antitrust and patent law. The question before the Court was whether the holder of a standard-essential patent abuses a dominant position by seeking an injunction against a potential licensee. Regarding a previous line of cases under European law, the Court took a surprisingly easy solution by forcing the companies to get back to the negotiation table. This may be attributed to a new methodological balancing approach of the Court. While acknowledging the problem of patent thickets, the Court restrains the role of antitrust authorities in this field. [ABSTRACT FROM AUTHOR]

The relationship between competition policy and intellectual property has been largely analyzed by the specialized literature. Nonetheless, the competitive impact of the enforcement of intellectual property rights in aftermarkets is still a challenging field of study. This article discusses the interface between intellectual property and competition in light of a case concerning the Brazilian automobile aftermarket. [ABSTRACT FROM AUTHOR]

Laws, like gardens, need occasional pruning to remove doctrinal clutter and costly weeds. The attempt to monopolize provision of Section 2 of the Sherman Act is a prime candidate for pruning and should be repealed. The decriminalization of Section 2 makes the attempt to monopolize provision no longer appropriate. The attempt provision fills no important gap in antitrust enforcement and generates unnecessary and significant costs and doctrinal complexities that burden litigation. So long as the attempt to monopolize provision remains in place, courts should discard specific intent as an element of the claim. "Specific intent" is incoherent, confusing, potentially prejudicial, and an unnecessary legal fiction. It erroneously suggests to the factfinder that an intention to gain monopoly power itself makes the challenged conduct an unlawful attempt to monopolize. Evidence of subjective intention (state of mind) should be admissible only as relevant to a specific material issue such as the legitimacy of asserted business justifications or competitive effects. The probative weight of evidence of intent or state of mind should be limited to the issue for which it was admitted. [ABSTRACT FROM AUTHOR]

In both the U.S. and the EU, the antitrust category of "sham litigation" (in the U.S.) or "vexatious litigation" (in the EU) enables a plaintiff, or a defendant in case this action forms part of a counterclaim, to argue that the introduction of litigation may constitute, under certain conditions, an infringement of competition law. This naturally leads to the question of what is a workable standard for establishing the existence of sham litigation, and how it is possible to distinguish between the legitimate use of the regulatory/litigation process and strategic attempts to use the process in order to restrict competition. Legal and economic literature, as well as the courts, have struggled to define operational tests enabling them to determine the boundaries of the "sham"/"vexatious" litigation antitrust category. This article examines the intellectual underpinnings of this form of abusive/anticompetitive conduct and puts forward a "mechanism design approach" with the aim to reduce the occurrence of sham litigation. [ABSTRACT FROM AUTHOR]

One of the most pressing antitrust issues today involves settlements by which brand-name drug companies pay generic firms to settle patent litigation and delay entering the market. Whether this activity constitutes an antitrust violation is a subject that has occupied courts and enforcement agencies around the world. This article focuses on the law in the United States, where the law is most developed. It explores the issues courts have addressed after the Supreme Court's 2013 decision in FTC v. Actavis, including payment, the patent merits, the Rule of Reason, pleading requirements, causation, and state law. The article also analyzes European law and enforcement, in particular seven monitoring reports and two significant rulings against companies. Finally, it briefly discusses developments in the UK, Canada, India, and Korea. [ABSTRACT FROM AUTHOR]

The U.S. system has relied heavily on antitrust class actions as a means of ensuring compensation and deterrence. Although this tool seems sensible in theory, the reality is that it remains highly controversial. On the one hand, commentators argue that class actions force defendants to settle cases lacking merit. Even if a settlement agreement is assumed to have a merit, class actions are accused of doing a poor job in compensating victims and deterring wrongdoers. On the other hand, the proponents of class actions claim that there is no reliable empirical evidence proving that class action schemes caused negative effects on antitrust litigation. The public debate about the effectiveness of class actions illustrate the controversial nature of American class actions fairly well. Therefore, using comparative insights from the predominant controversies, this study will determine how well antitrust class actions fulfill compensation objectives and to what extent they can facilitate deterrence. [ABSTRACT FROM AUTHOR]

Ever since the U.S. Supreme Court opinion in Matsushita, various U.S. district courts have issued a series of rulings that appear to constitute a new learning on the economics of collusive behavior and to elevate the economic evidentiary bar for successful proof of price-fixing and bid-rigging. The rulings use game theory constructs expressed as pure, interdependent behavior that theoretically can result in supracompetitive prices in the absence of any agreement. The most recent explanation of this learning is contained in the 2016 titanium dioxide (TiO2) opinion Valspar v. E. I. DuPont, which raises the bar for proving a Sherman Act Sec. 1 violation. This and earlier rulings appear counterintuitive when their reasoning is tested against the context of Judge Richard Posner's opinion on the value of circumstantial evidence in High Fructose Corn Syrup and In re Text Messaging. This article identifies market structure and behavioral features typically found in cartel arrangements, and tests the efficacy of what is perceived as a new learning on collusion/competition with empirical data from twelve alleged price-fixing conspiracies successfully litigated over the past two decades. [ABSTRACT FROM AUTHOR]

Entering into the ninth year of the Anti-Monopoly Law of the People's Republic of China (AML) in force, China has tackled high-profile cases, promulgated and implemented relevant rules and interpretations in regard to the interface between anti-monopoly and intellectual property rights, while relevant guidelines are in process at the same time. On one hand, the competition authorities in the tripartite system of antitrust enforcement have respectively shown their attitudes towards relevant issues concerning intellectual property rights (IPR)-related anticompetitive conducts by initiating investigations and drafting guidelines. On the other hand, judicial remedies tend to be applied for in parallel, when enterprises who suffered anticompetitive treatment filed complaints to courts. [ABSTRACT FROM AUTHOR]

Despite having committed to FRAND (fair, reasonable and nondiscriminatory) terms, not a few standard essential patent (SEP) owners have engaged in holdup (such as suing for injunction, or levying very high royalty), which has triggered antitrust/competition actions in the U.S., the EU, China, Japan, and Korea. This article focuses on the Japanese situation, highlighting its difference with the Chinese one. The Japanese competition agency (JFTC) as well as the Japanese Intellectual Property (IP) High Court have closely studied the jurisprudence in the U.S. and the EU, coming up with solutions in line with those adopted by the U.S. and EU courts and agencies. By contrast, Chinese agencies and courts have devised unique methods for tackling SEP/FRAND issues. First, a Chinese antimonopoly agency has utilized the exploitative-abuse provision of the Chinese competition law for ordering a SEP owner to reduce its royalties to Chinese licensees, regardless of the SEP owners' FRAND commitment. Second, a Chinese court utilized "nondiscriminatory" portion of FRAND commitment, for mandating virtually the same royalty to be levied on Chinese licensees as that levied on Apple. These methods either leave too much latitude to the agencies or lack a convincing rationale. [ABSTRACT FROM AUTHOR]

This article discusses the European Commission's investigation of Google in relation to the alleged abuse in the online search market concerning Google's comparison shopping service. Drawing a comparison with the investigation conducted by the Federal Trade Commission in the U.S., the analysis focuses on whether the conditions of Article 102 of the Treaty on the Functioning of the European Union (TFEU) are satisfied and whether there is scope to conclude that the Google's conduct has caused harm to consumers or restricted competition. In particular, insights relating to the treatment of innovation in competition law will be provided. Finally, the article aims at shedding light on the investigation and at predicting the possible theory of harm to which the European Commission will make reference. [ABSTRACT FROM AUTHOR]

While the U.S. Supreme Court decision in Sylvania put an end to the debate on the treatment of vertical territorial restraints under the U.S. antitrust rules forty years ago, the debate continues in the EU. EU applies a broad presumption that such restrictions are anticompetitive. The EU schism on verticals is becoming more and more relevant for multinationals, as the European Commission has recently started a number of investigations targeting restrictions in online distribution. This article shows that the EU policy on vertical restraints is driven predominantly by the perceived need to use the competition rules to further the integration of the EU internal market. A more teleological interpretation of that objective would allow for a more flexible, effects-based analysis of vertical agreements under the EU competition rules. [ABSTRACT FROM AUTHOR]

Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co. could have been influential in three ways. First, the Court directly addressed the standard for predatory buying and, consequently, could have influenced the likelihood antitrust plaintiffs will rely on that theory. Second, its express recognition of the similarities between the buying and selling sides of markets could have encourage increased reliance on monopsony-based theories of liability. Finally, the decision could have created the impetus for refining the analysis of a number of issues when they arise in monopsony contexts. These include monopsony tying, the use of monopsony power to gain power on the selling side of markets, as well as standing and antitrust injury. This study finds that its impact has been to discourage use of the predatory buying theory and, perhaps, of monopsony theories generally. Interestingly, it has encouraged defendants to claim plaintiffs are making Weyerhaeser-like claims in hopes of being granted a dismissal. [ABSTRACT FROM AUTHOR]

Due in part to the rights of third parties in merger litigation, there have been a number of highly contested litigated merger cases in South Africa. The article initially provides background to the mandatory premerger notification regime in South Africa, including setting out the roles of the various bodies and courts involved in the review and litigation of mergers. The article goes on to discuss the rights of third parties in merger litigation; not all third parties have the same status with regard to participating or intervening in merger proceedings. The article provides an analysis of a number of recent merger cases, including Wal-Mart Stores Inc./Massmart Holdings Ltd. and Pioneer Hi-Bred/Pannar Seed, before concluding with a brief discussion of the rights of merging parties to implement a merger pending an appeal. [ABSTRACT FROM AUTHOR]

Canada adopted a sophisticated merger review regime in 1986, but contested mergers remain a rarity. Nevertheless, the specter of merger litigation influences most complex merger reviews. Indeed, actual litigation is merely the tip of the iceberg. The prospect of litigation and the discipline it brings to the process influence all but the simplest cases. This article explains the Canadian merger review paradigm, including judicial oversight. It also provides a summary of the litigated merger cases and explains the significance of a recent case involving hazardous waste disposal in British Columbia to the tactical and strategic decisions operating in mergers that may seriously affect competition. Finally, this article provides insights as to why so few mergers are litigated in Canada as compared to the United States. [ABSTRACT FROM AUTHOR]

An essay is presented on American antitrust law, pharmaceutical patent infringements lawsuits, and pay-for-delay settlements as of March 2013, focusing on the U.S. Supreme Court's (USSC's) ruling in the case Watson Pharmaceuticals v. FTC. Injunction remedies and American patent laws are addressed, along with intellectual property rights in the U.S., business competition, and the USSC case eBay Inc. v. MercExchange LLC. English philosopher John Locke's labor theory is also examined.

The article discusses dual distribution restraints, American antitrust law, and the free riding concept as of March 2013, focusing on business research and practice in America. Independent resellers, manufacturers, and the U.S. Supreme Court case PSKS Inc. v. Leegin Creative Leather Prods. Inc. Other topics include business-to-business (B2B) and business-to-consumer transactions, as well as manufacturing firms such as computer industry Hewlett-Packard, Dell Computer, and Compaq.

The article focuses on market definition and its use in hypothetical monopolist tests. Topics include economic competition, the disadvantages of market definition in practice, and antitrust jurisprudence in the U.S. Information is provided on the prevention of monopolistic activity and antitrust regulation by government agencies.

The article focuses on antitrust law decision making in the Roberts Court, which describes the judgments of the U.S. Supreme Court led by Chief Justice John Roberts beginning in 2005. Information is provided on U.S. antitrust regimes, economic competition, and competitive injury suits. Information is provided on price fixing and interbrand competition.

The article discusses antitrust law and unilateral misconduct in standard-setting organizations (SSO) as of March 2012, focusing on patent hold-up issues and he uncertainty associated with reviews of SSO conduct by courts and agencies. Several antitrust law cases are examined, including In re NCAA I-A Walk-On Football Players Litigation which deals with allegations of collusion. The U.S. Federal Trade Commission (FTC) Act is also mentioned.

The article discusses nonpracticing entities (patent trolls) and the 2006 legal case In re Rambus Inc., focusing on antitrust law and excessive pricing issues related to patents, as well as an analysis of the court's ruling in the case Broadcom Corp. v. Qualcomm Inc. The impact of standard setting on competing technologies is addressed, along with an overview of U.S. and European Union patent cases.

The article discusses standards development organizations (SDOs) in relation to patent and antitrust laws in the U.S. as of March 2012, focusing on the exclusionary capture of a standards development process as outlined in the 1988 U.S. Supreme Court case Allied Tube v. Indian Head Inc. Compliance certification and the impact of capture on patents are also addressed.

This article discusses a court case related to antitrust standards and their application with reference to an allegation of collusion in Major League Baseball's (MLB) free agent Barry Bonds. Due to legal problems, Bonds was out of job as baseball team San Francisco Giants were rebuilding the team without him. Major League Baseball Players Association (MLBPA) then reviewed that the MLB had colluded Bonds. The article concludes that thus antitrust standards had been made to handle the grievance.

This article discusses the argument concerning the implementation of resale price maintenance (RPM) by business enterprises in the U.S. It explores the ruling made by the U.S. Supreme Court on the lawsuit filed by PSKS Inc. against Leegin Creative Leather Products Inc. which resulted to the illegality of RPM in the country brought by its ability to promote anticompetitive commercial practices. It examines the theory of exclusion on RPM established by the Supreme Court which addresses the questions of covering complement market and the impact of RPM on implicit prices.

This article discusses the lessons that can be learned by the European Commission (EC) from the jurisprudence of the U.S. Supreme Court under chief justice John Roberts. It provides a discussion on the challenges facing private claimants of bringing antitrust lawsuits to the court, which include difficulty on proving antitrust violation to the alleged party, removing of presumptions and preventing private parties to collect evidence. It reveals that the issues will help the EC in the development of antitrust law which addresses the interest of private parties.

This article discusses the impact of the decision made by the U.S. Supreme Court to the lawsuit between Leegin Creative Leather Products Inc. and PSKS Inc. It provides an overview of the litigation where PSKS sued Leegin for engaging into vertical agreements with its retailers by setting minimum resale price maintenance (RPM) on the sale of its goods. It explores how RPM is implemented in the competition law of the European Union (EU) and how RPM affects the operations carried out by retailers or manufacturers.

This article argues that the Antitrust Modernization Commission's proposed measures would provide less deterrence at greater cost than other practical reforms in the U.S. It discusses the important determinants of developments in the Illinois Brick saga, the adoption of the Class Action Fairness Act (CAFA), and the complete recommendation of the Commission. It contends issues about the repeal of Illinois Brick Co. by Congress and the exclusivity of any federal right of action for indirect purchasers. The author concludes that the Commission's recommendation to create a federal right of action is sensible because it believes that the creation of the right would encourage the filing of indirect purchaser claims under federal law.

This article focuses goals of sensible remedial scheme as well as recommendations of the Antitrust Modernization Commission (AMC) in the U.S. It summarizes the theory of the optimal penalty and the need to consider penalties cumulatively. In addition, it discusses the Committee's positions on prejudgement interest, attorneys' fees, and contribution and claim reduction. Furthermore, it assesses the mandatory treble damages remedy and the basic antitrust enforcement scheme with public and private components. The author concludes that the Commission did not make any changes for the improvement of the antitrust enforcement system.

This article explores the Antitrust Modernization Commission's request for further clarification to set out rules and to state a set of principles governing liability. It discusses the law of monopolization and refusals to deal, antitrust principles, and legal standard. It presents several cases, such as American Tobacco Growers v, Neal, Associated Press v. United States, and Verizon Communications Inc. v. Trinko. The author concludes that the Commission's conclusion is a useful guiding principle for courts and the right approach as a default rule.

This article offers information on the alder sawlog antitrust cases against Weyerhaeuser Co. in the U.S. in 2008. Data from the follow-on cases and other industry sources show that Weyerhaeuser has abandoned the anticompetitive practices challenged by Ross-Simmons Hardware Lumber Co. at trial and that competitive health of the alder sawlog market has developed. In addition, the market share of Weyerhaeuser declined from over 75% to less than 50% while the profitability and production of its rivals developed substantially. The alterations in the relevant market brought on by Ross-Simmons and other 13 plaintiffs in five antitrust cases against Weyerhaeuser speak loudly to the procompetitive force of private civil enforcement of the Sherman Act.

This article offers information on various court cases on antitrust policy under Judge John Roberts in the U.S. In such cases, Roberts competently assess claims of commercial predation and expresses its fears on the cost of erroneous findings. In Twombly case, the Court is skeptical about the ability of lower courts to resists drawing "false inferences" in lawsuits involving charges of tacit collusion among oligopolists while in Credit Suisse, Roberts doubts the ability of tribunals to refrain from making unusually serious mistakes. Discussed are the details of the issue.

This article discusses the implication of Telecommunications Act of 1996 to the lawsuit Twombly vs. Bell Atlantic Corp. in the U.S. In the lawsuit, plaintiffs alleged that the incumbents' parallel restraint was evidence of collusion and violated the section 1 of Sherman Act. It reveals that the first element of Twombly complaint was addressed by the Trinko decision wherein the Court ruled that failure to fully cooperate with competitive local exchange carriers (CLEC) did not expose the Regional Bell Operating Companies (RBOC). Discussed are the details of the lawsuit.

This article provides information on the development of the case of Texaco v. Dagher. The Supreme Court has stated in Dagher that it is not unlawful price-fixing in violation of section 1 of the Sherman Act 2 for a fully-integrated joint venture to set the prices at which it sells its own products. According to the author, the plaintiffs-respondents that there was more to the case than appears from the Court's opinion, contrary to what might appear from the opinion, the respondents did in fact file a brief in the Supreme Court.

This article presents a perspective on the case of Dr. Miles Medical Co. v. John D. Park & Sons Co. The structure of the decision of the court reflects its focus on policy. After determining that Dr. Miles is bad antitrust policy, the Court concluded that considerations of "stare decisis" do not require a different result. Furthermore, Justice Kennedy posed the question as whether the Court should overrule the per se rule and allow resale price maintenance agreements to be judged by the rule of reason.

The article examines the U.S. Supreme Court's decision on the case "Verizon Communications Inc. v. Law Offices of Curtis V. Trinko LLP," which created a change on the monopolization law stated in the Section 2 of the Sherman Act. The case requires a lot of procedural grounds to support the court's decision. Despite of the absence of particular approach in resolving the uncompetitive conduct among monopolized businesses, the Telecommunication Act played a vital role to arrive at a decision.

The article criticizes the Supreme Court's decision on the case "Verizon Communications Inc. v. Law Offices of Curtis V. Trinko LLP." The author argues that by relying on faulty assumptions about the regulated industry limits the scope of antitrust enforcement. He also asserts that the decision contradicts both the outcome in the case "United States v. AT&T" and the theory on which that case rested.

The article presents a discussion on the controversies brought about by the Supreme Court's decision on "Verizon Communications Inc. v. Law Offices of Curtis V. Trinko LLP." One of the controversies involves the difference between antitrust laws with that of regulations based on functionality and doctrines The failure of judges to consider the existing telecommunications policy for the case is examined.

The article examines the U.S. Supreme Court's decision in "Verizon Communications Inc. v. Law Offices of Curtis V. Trinko LLP." The decision has attracted several attentions in compliance with the 1996 Telecommunications Act which required the exchange carrier to provide access to its network to other firms which seek to provide telephone service locally. The case provide thoughtful contributions to the continuing debates over the pronouncement on monopolization law under section two of the Serman Act.

Studies the regulation of exclusionary conduct by a dominant firm in a network industry using the example of Microsoft Corp. cases in the U.S. the European Union and Japan. Difference of standards used in the three jurisdiction regarding Microsoft's conduct; Rationality of the various approaches to the legality of exclusionary conduct; Overview of antitrust standards on the illegality of exclusionary conduct.

Updates an a 1993 study of the United States Federal Trade Commission's (FTC) horizontal restraint cases through the end of 2003. Comparison of overall enforcement levels before and after 1993; Changes in kinds of cases, as distinguished by the underlying anticompetitive theory of harm, the types of challenged restrictions and concentration of different industries; Economic issues raised by litigated cases.

Argues that experience in indirect purchaser litigation under state law in the U.S. contradicts the claim that indirect purchaser actions benefit consumers. Influence of the goal of antitrust, which is to promote the consumer interest, on the interpretation of substantive categories; Factors that triggered an explosion of indirect purchaser class actions under state law.

Discusses the economic complaints of the United States government against Microsoft Corp. Browser battle between Internet Explorer (IE) and Netscape Navigator; Government's claim that Microsoft violated sections 1 and 2 of the Sherman Act; Coverage of the antitrust law; Background on Microsoft's development and investment in IE; Government's market analysis; Objectivity and reliability of district court's findings.

Explores various ways digital economies should give rise to revisions in the way antitrust cases against digital firms in the United States should be appraised. Key concept in digital economics; Restraint in antitrust prosecution of digital firms; Experience with the Microsoft Corp. antitrust case; Errors in antitrust prosecutions; Benefits to firms of effective, antimonopoly, antitrust prosecution.

Presents the electronic mails the contributors of `The Antitrust Bulletin' sent to criticize one another and ask follow-up questions in the United States. Reactions to the articles; Opinions on attempted monopolization; Personal views on antitrust; Analysis on several arguments made; Defenses against the criticisms.

Discusses some of the concerns that have arisen as a result of software cases and consent orders. Relationship between concept of software standards and software production market definition; Software industry's received antirust scrutiny; Investigation of Microsoft Corporation's business practices; Noteworthy United States Department of Justice (DOJ) activities in suit involving Microsoft's attempted acqusition on Intuit Corporation.

Focuses on economic lessons from antitrust litigations of International Business Machines Corporation (IBM) and General Motors. IBM's aversion of antitrust treatment; IBM's successful aversion of Sherman Act; Economic analysis of the cases; Possible innovations on merger policies and price discrimination.

An introduction is presented which discusses several reports published within issue on topics including compensation of victims of antitrust violations; law and economics of Canadian merger analysis; and the U.S. Supreme Court in the case 'Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.'

The article focuses on the state of antitrust laws in the United States with reference to the litigation "LePage's Inc. v. 3M." There has been a lively conversation among antitrust practitioners, economists, and academics about the perceived requirement for a forceful standard to apply in determining whether, on the one hand, bundled rebates and other similar conduct are but another form of vigorous price competition, or purposefully designed exclusionary devices on the other. 3M pressed the argument that the cost test of "Brooke Group" should be the single antitrust standard by which bundled pricing of multiple products should be measured.

The article focuses on antitrust laws and bundled rebates with reference to the litigation "LePage's Inc. v. 3M." It first highlights the role of economies of scale in analyzing loyalty rebates. There was ample qualitative evidence that the purpose of 3M's various tactics used in the litigation was to foreclose LePage's from achieving economies of scale. Tactics used were bundled rebates, exclusive dealing, and a few other things. This problem of economies of scale has an important association for modeling economically or otherwise thinking about loyalty rebates. The article also discusses the importance of the substitutability of the rival product in at least the storytelling and qualitative way of looking at this kind of problem.