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The article discusses the new Merger Guidelines (MGs) issued by the U.S. Department of Justice and the Federal Trade Commission. It focuses on the concept of "risk" in the MGs and how it differs from the previous Horizontal Merger Guidelines (HMGs). The MGs use the term "risk" more than 40 times and suggest that it encompasses the idea of a merger substantially lessening competition. However, the article raises questions about how "risk" compares to the previous standard of "reasonable probability" and how the Agencies assess the risk without predicting the future. The MGs also introduce a quantum antitrust approach, where a merger can both substantially lessen competition and not substantially lessen competition. The article provides insights into the historical context of Section 7 of the Clayton Act and the Supreme Court's interpretation of the reasonable probability standard. It highlights the differences between the MGs and the HMGs in terms of avoiding unnecessary interference with mergers that are competitively beneficial or neutral and the predictive nature of Section 7 enforcement. The MGs focus on scenarios where mergers violate Section 7, but they do not provide conditions for making a substantial lessening of competition likely. The article concludes by discussing the presumption of substantial competition under a unilateral effects theory and the use of quantitative tools and impressionistic evidence in assessing the significance of pre-merger competition. The text discusses the new Merger Guidelines (MGs) issued by the U.S. Department of Justice and the Federal [Extracted from the article]

This article explores the threshold requirement of the antitrust rule of reason in cases involving FTC v. Actavis, Inc. It highlights that some courts have overlooked the need to identify and prove the conduct in question, potentially resulting in false positives and incorrect conclusions of antitrust violations. The article stresses the significance of first establishing whether the conduct in question actually occurred before applying the appropriate antitrust standard to evaluate its impact on competition. Additionally, the article offers guidance on correctly applying the rule of reason in cases involving "reverse payment" settlements under Actavis, emphasizing the importance of identifying a significant, unexplained reverse payment before applying the Actavis inference. It advises defense practitioners to focus on identifying the challenged conduct and providing evidence of fair value, while plaintiffs should be prepared to demonstrate the existence of a substantial, unexplained payment. [Extracted from the article]

The article challenges common criticisms of the Robinson-Patman Act (RPA), an antitrust law that prohibits price discrimination. Critics argue that the RPA leads to higher consumer prices and discourages discounting, but the article argues that these criticisms lack evidence and are based on unsupported assumptions. Instead, the article suggests that the RPA actually protects small businesses from larger, more efficient businesses and could result in lower consumer prices. The author calls for a reevaluation of these criticisms and a deeper understanding of the RPA's purpose, emphasizing its role in promoting competition and supporting small businesses. [Extracted from the article]

The Antitrust Division of the U.S. Department of Justice has been struggling to win criminal trials for alleged violations of antitrust laws, despite a more aggressive approach under President Biden. The Division has faced high-profile losses, with only one conviction out of 30 defendants brought to trial in eight cases. Challenges in proving illegal agreements and jurors' reluctance to convict on antitrust charges are cited as reasons for these losses. The article also discusses difficulties in prosecuting no-poach cases and highlights shortcomings in the Division's investigations, reliance on documents, witness development, leniency program, and trial experience. The article suggests improvements in pre-filing investigations, stronger charging cases, and increased incentives for cooperators. It concludes that while aggressive enforcement is important, careful evaluation and patience are necessary for successful prosecutions. [Extracted from the article]

This article explores the treatment of efficiencies in antitrust law, specifically in the context of merger cases. It argues that courts and competition agencies often focus too much on the potential harms of a merger and fail to consider the potential benefits and efficiencies that could be generated. The article suggests that the burden of proof for establishing efficiencies should be equivalent to the burden of proof for establishing anticompetitive effects. It provides examples of past court cases that demonstrate a shift in the treatment of mergers, moving away from a focus on market share and concentration as determinative factors. The article presents a balanced view of the different perspectives on evaluating mergers and the role of efficiencies in this process. [Extracted from the article]

The article explores the role of the Federal Maritime Commission (FMC) in enforcing competition in oceanic transportation and compares it to antitrust laws. It suggests that the FMC can learn from antitrust enforcement practices, such as using accelerated timelines and administrative law judges, to promote competition. The article also recommends convening workshops to gather insights from experts, increasing transparency in evaluating agreements, and adopting alternative concentration metrics. It proposes the use of presumptions and the class device to enhance efficiency and deter anticompetitive behavior, as well as allowing reasonable estimation of damages in cases of competitive injury. [Extracted from the article]

The article examines the impact of the Supreme Court's 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of California on antitrust class actions. The decision introduced new requirements for plaintiffs seeking to sue companies using specific personal jurisdiction, potentially making it more difficult to certify nationwide classes. However, the application of the decision to class actions has been inconsistent, with some courts choosing not to apply it and others finding ways around it. The article offers guidance to class action practitioners on how to handle personal jurisdiction challenges in light of the Bristol-Myers Squibb decision. [Extracted from the article]

This article examines the challenges and limitations of the current international merger control system, with a focus on technological markets. It analyzes three recent merger cases to illustrate the issues faced in merger control and highlights the differences in outcomes between jurisdictions. The article suggests that American courts are hesitant to block mergers and take a conservative approach to antitrust, while European and UK agencies are more willing to challenge mergers in technological markets. It also discusses the need for improved cooperation and coordination among agencies in reviewing global mergers and proposes a voluntary joint review process to enhance efficiency and reduce conflicting decisions. The author, Michal Halperin, a Research Fellow at the Harvard Kennedy School, emphasizes the benefits of cooperation for all parties involved and acknowledges the assistance of Gabriel Kelvin in conducting the research. [Extracted from the article]

China has recently revised its anti-monopoly law and issued guidelines in key areas such as the platform economy, pharmaceutical industry, and semiconductor industry. The State Administration for Market Regulation (SAMR) has introduced new provisions for merger reviews, antitrust investigations, and antitrust litigation. The SAMR has also focused on the semiconductor industry, active pharmaceutical ingredients, and the platform economy. The article discusses recent antitrust enforcement actions and developments in China, including investigations and fines imposed on companies like Alibaba. It also highlights the growing influence of specialized courts in shaping antitrust enforcement and the use of economic analysis tools in decision-making. The article concludes by emphasizing the dynamic nature of antitrust in China and the importance of economic analysis. [Extracted from the article]

This document is a transcript of a panel discussion titled "Trying a Sherman Act Section 2 Case: Best Practices." The panelists discuss the renewed interest in monopolization antitrust litigation and the factors contributing to this trend, such as concerns about concentration of power, unequal distribution of wealth, and the influence of large digital platforms. They also explore the challenges of evaluating market power and the need for more sophisticated approaches to antitrust enforcement. The text discusses the nature of competition and the impact of network effects and innovation on monopolization in the market. It highlights the debate over whether multihoming and gateways between networks can prevent winner-take-all markets and the emergence of successive monopolists. The text also mentions the government's renewed interest in antitrust and its effect on private actions, as well as the debate surrounding the consumer welfare standard in antitrust enforcement. The panelists discuss the tradeoff between static and dynamic efficiency, the relationship between market power and innovation, and the need for a balanced approach in antitrust law. The text concludes with a discussion on the competition problem in industries with free products, emphasizing that nothing is truly free and that the absence of a price does not exempt them from antitrust scrutiny. The text also discusses the concept of the consumer welfare standard in antitrust law, the definition of exclusionary conduct, the role of intent and the concept of "monopoly broth" in monopolization cases, the length of monopolization cases, and the potential impact of the Trinko decision [Extracted from the article]

This article explores the concept of "self-preferencing" by dominant firms in the context of competition law. It challenges the assumption that self-preferencing is always anticompetitive and argues that it is a natural part of competition. The article examines legal cases in the US and Europe that have dealt with self-preferencing, highlighting the different approaches taken by regulators. It concludes that distinguishing between anticompetitive and benign self-preferencing is crucial, and that condemning all self-preferencing can harm competition and the economy. The article also discusses self-preferencing among digital platforms and its implications for antitrust regulation, arguing that it should be considered legal to avoid hindering innovation and investment in the tech sector. It compares the approaches of the US and European Union in addressing self-preferencing, emphasizing the differences in their legal frameworks. The article recommends that self-preferencing should be presumed legal and that existing case law should be followed. [Extracted from the article]

This article explores the concept of "self-preferencing" in the context of antitrust law. Self-preferencing occurs when a company prioritizes its own products over those of its competitors. Examples of self-preferencing include Google favoring YouTube videos in search results and Amazon ranking its own brand first in product listings. The article explains the current laws governing self-preferencing and highlights that they only apply when a firm has market power and unequal treatment leads to competitive harm. The proposed American Innovation and Choice Online Act (AICOA) aims to regulate self-preferencing by large online platforms, but critics argue that it unfairly targets digital firms and overlooks the ease of entry and competition in digital markets. The article concludes by emphasizing the ongoing debate surrounding the impact of self-preferencing on competition and consumer choice. Additionally, the author of the article raises concerns about the potential negative consequences of a broad rule against self-preferencing, suggesting that it could disadvantage certain firms and discourage them from dealing with rival products. The author also notes that previous legal barriers have led firms to vertically integrate into certain areas to avoid dealing with rival goods. [Extracted from the article]

Christie's,[35] and Diamond Wars-De Beers.[36] For those who want to play, rather than listen to, their antitrust interest, but are uncomfortable with Hasbro's Monopoly classic quest for total domination of the board, let me recommend the Anti-Monopoly game. 38 Just to make this more confusing, Anti-Monopoly II was originally marketed as Anti-Monopoly (the version I own), but apparently changed its name around 1987 due to litigation between these two newer entrants and between them and Hasbro, the owner of the original Monopoly game. FTC officials appeared on the PBS News- Hour and published op-eds in the New York Times. According to a gaming website: There are 3 kinds of company combinations on the board: Oligopolies, Trusts and Monopolies, marked by one, two and three "accusation circles" respectively. [Extracted from the article]

A misrepresentation is material if it is likely to affect consumers' choices or conduct regarding an advertised product or the advertising for the product A basic truth-in-advertising principle is that it's deceptive to mislead consumers about the commercial nature of content. They also found when consumers' disutility for native ads does not exceed that for traditional ads by too much, advertisers may also be better off with native ads under the assumption that advertisers obtain higher marginal utility from native ads than from traditional ads. For example, it can be lower consumer subscription price for online news platforms, platform offered consumer discounts in online marketplaces, and non-monetary price such as better user features and service quality of search engine or social network platforms. Therefore, a prohibition against self-preferencing would lead to consumer harm due to increased product prices, especially for those consumers who prefer third- party products ex-ante. [Extracted from the article]

In contrast, firm 2 acquires a smaller company that has developed the technology that the firm desires.10 Each firm later brings a new successful product to market as a result of these investments. When firms enjoy positive economic returns, the antitrust practitioner should inquire why other firms have not entered to compete away these profits; the practitioner may conclude that these returns are, in fact, due to market power. If a firm's production technology relies only on labor and other variable input goods, there is no investment for which to measure the economic rate of return for a firm. Identifying the returns on an investment is done typically using the income statement component Earnings Before Interest, Taxes, Depreciation and Amortization (EBITDA).5 In the case of a single-product firm or a firm that maintains financials for discrete business units, the impact on EBITDA resulting from an investment may be readily apparent. [Extracted from the article]

In addition to the three initiatives that were not caught by the cartel prohibition, ACM has published guidance on two initiatives that were caught but were still allowed as they fulfilled the requirements of the exception under paragraph 3 of the Dutch and EU cartel prohibition. However, in the meantime, ACM itself has taken a new direction regarding sustainability agreements, which is among the most progressive in Europe.13 This was inspired by the 2015 Paris Agreement and UN Sustainable Development Goals, and reflects board changes at ACM, which placed Martijn Snoep at the helm with strong views on the need for a proactive sustainability agenda. 29 ACM, ACM: Shell and TotalEnergies Can Collaborate in the Storage of CO2 in Empty North Sea Gas Fields (June 27, 2022), https://www.acm.nl/en/ publications/acm-shell-and-totalenergies-can-collaborate-storage-co2-emp-ty-north-sea-gas-fields. IN JUNE 2022, THE NETHERLANDS Authority for Consumers and Markets (ACM) published a no-action letter regarding a multi-billion euro, joint project by energy majors Shell and TotalEnergies for large-scale carbon capture and storage (CCS) using depleted gas fields in the Dutch section of the North Sea.1 In the EU, the European Commission (Commission) published draft Horizontal Guidelines with a specific chapter on sustainability in March 2022 (Horizontal Guidelines of the Commission)2, and is likely to formally adopt a final version in Spring 2023. [Extracted from the article]

IAN SIMMONS: And, Doha, if I could just put a footnote on that, we did a jury trial before Judge Schofield, an antitrust case for the plaintiff's side, in the Southern District of New York from March to May, and Judge Schofield's standing orders are young lawyers need to argue in limine, so the judiciary is bringing people forward, giving them those opportunities. Also, you are now seeing judges actually appointing Plaintiffs' leadership development committees in class actions to ensure that women lawyers and lawyers of color are getting the type of experience that they need so that they can apply for MDL leadership positions. You learn about the intricacies of an industry; you learn a little bit about economics, Martha, enough to be dangerous; and you also have the good fortune to work with distinguished economic experts and lawyers from around the country on both the plaintiff side and the defense side, and of course government lawyers as well. DOHA MEKKI: On the point about opportunities for younger lawyers, I want to highlight the trial court judges who have given the Antitrust Division the opportunity to give many junior lawyers the chance to stand up and take their first witnesses at trial. On behalf of the ABA Antitrust Magazine, I want to thank Judge Wood, Principal Deputy Assistant Attorney General Doha Mekki, Martha Samuelson, Roberta Liebenberg, Barbara Sicalides, and Eleanor Fox. [Extracted from the article]

According to Berman, the new public policy schools, with faculty largely staffed by Ph.D. economists, "were producing 'RAND lite.'"33 The curriculum was grounded in economics, statistics, operations research, and decision analysis, with public policy programs producing analysts "comfortable with the economic style of reasoning; focused on choice among alternatives, cost effectiveness, and quantitative analysis." Elizabeth Popp Berman Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy Princeton University Press 2022 We do not understand the evolution of antitrust law and policy very well. Pol. Econ. 187 (2017); Daniel Hirschman & Elizabeth Popp Berman, Do Economists Make Policies? Under the influence of Turner and likeminded lawyers and economists, the antitrust agencies began to institutionalize the economic style by creating offices to house Ph.D. economists, who played an increasingly important role in formulating antitrust policy. [Extracted from the article]

In a budget implementation bill passed into law on June 23, 2022, the Canadian government made significant changes to Canada's Competition Act1 (Act). This element of the test was also judicially interpreted in Canada (Commissioner of Competition) v. Canada Pipe Co.A, where the court stated that to be anti-competitive, "an act must have an intended predatory, exclusionary or disciplinary negative effect on a competitor"5 in a market that the dominant firm substantially or completely controls, although the competitor and dominant entity need not necessarily be in the same market. The amendments clarify that orders may be made against persons outside Canada who carry on business or sell products into Canada. [Extracted from the article]

The digital revolution is exactly the sort of systemic shock that the antitrust agencies need to embrace in creating a new organizational structure and way of thinking As an initial step, it entails a better relationship with outside parties Often, companies are unwilling to meet regularly with enforcers because they are concerned that such meetings will lead to additional scrutiny by these enforcers Business units in particular are wary of meetings with the government to explain issues broadly Not surprisingly, it is often the case that wherever there are public hearings, it is outside law firms and economists that serve as interlocutors between companies and the antitrust authorities Hence, the issue is one of trust building between enforcers and companies. Based on a national representative sample of over 850,000 U. S. firms, the survey finds that over 90% of the responding firms store information in digital format for at least one business function, and over 54% purchase at least one cloud service if they use information technology (IT). Larger firms benefit because they can acquire successful start-ups, providing the larger firms with dynamic capabilities and complementary assets, while smaller firms benefit from being acquired 16. RECENT OUTCRY FOR ANTITRUST reform argues that U S markets have become more concentrated, that large firms' profit margins have increased, and that part of these changes may be attributed to lax antitrust enforcement since the 1960s. [Extracted from the article]

The European Union (EU) legislators adopted the Digital Markets Act (DMA) with overwhelming majorities While many jurisdictions around the globe have for years talked about the problems in the functioning of digital markets and the need to do something1 -- the EU has now acted. EU antitrust law will continue to apply to digital markets outside the scope of the DMA provisions This is important as the DMA covers only specified types of conduct by a specific class of companies ("gatekeepers") in relation to a defined set of services ("core platform services"). The DMA also foresees the adoption of implementing acts48 and guidelines49 that will set out the EC's approach both in terms of procedure (including on enforcement cooperation between the EC and the EU Member State agencies, which cover more than simply antitrust agencies50) and substance for the implementation and enforcement of the DMA. (L 409) 1. 89 These include a delegated act by which the EC can extend obligations to further core platform services/users and further specify them, etc. (Digital Markets Act, supra note 5, Articles 12 and 49); market investigations and legislative proposals to add new core platform services and obligations (Digital Markets Act, supra note 5, Article 19); and general review (Digital Markets Act, supra note 5, Article 53). [Extracted from the article]

The FTC's monopolization complaint against Facebook (n/k/a Meta) presented an early test for the agencies' new evidentiary approaches, and in particular the FTC's apparent decision to use its complaint to migrate away from the "formalistic market definition exercise "29 The district court partially declined the invitation to migrate. As to the second issue, we conclude that courts are weighing the agencies' new evidentiary approaches within the balances of traditional consumer-welfare criteria, implying that litigants fighting the agencies in court should continue to make price, output, quality, and innovation the focus of the narrative. [T]he Court concludes that the FTC has adequately alleged indirect evidence of such monopoly power, it need not separately address whether this is the rare case in which the agency has also pleaded direct evidence." Yet, absent new legislation, antitrust law will continue to develop as part of the common-law process -- courts, rather than legislators or the agencies, control the agenda by applying and interpreting Section 7 of the Clayton Act and Section 2 of the Sherman Act in an ever-evolving set of circumstances. [Extracted from the article]

Jonathan Kanter and Lina Khan, chair of the Federal Trade Commission, are dissatisfied with the performance of their respective Agencies in enforcing the provisions of Section 7 of the Clayton Act 37 Since the passage of the Hart-Scott- Rodino (HSR) Act in 1976,38 there have been very few merger cases that have gone to trial Instead, following the HSR pre-merger notification requirements, most disputes between the merging parties and the DOJ and the FTC are settled or resolved administratively. This assessment by the Court seems to be impressionistic and certainly lacks analytical rigor It is not clear why Kanter would want the courts to dispense with any analysis in deciding whether a horizontal merger should be prohibited The Court may well have reached the correct decision in Philadelphia National Bank, but its methodology should not be emulated. The 2010 Horizontal Merger Guidelines39 and the 2020 Vertical Merger Guidelines40 are currently being revised and, in the future, may reflect the, in our view, somewhat negative attitudes of Kanter toward mergers. IN RECENT SPEECHES, U. S. DEPARTMENT OF Justice Assistant Attorney General Jonathan Kanter has voiced his dissatisfaction with antitrust enforcement and the level of concentration in U. S. markets. [Extracted from the article]

29 And the Supreme Court has made it more difficult for merging parties to successfully claim a state-action immunity defense for an otherwise anticompetitive merger 30 Finally, the narrative of more permissive judicial standards toward mergers often points to a weakening of the structural presumption. The available evidence points to the contrary -- that the Agencies tend to drive merger policy, and that they frequently drive both policy and judicial doctrine in a pro-enforcement direction. Has Merger Enforcement Really Gone Soft? Merger enforcement activity is positively affected by the size of the Agencies' budgets, suggesting that if increased merger enforcement is a desired policy goal, increasing the Agencies' budgets is a viable way to do this. [Extracted from the article]

In such a case, the merger could put downward pressure on the merging firm's wages and upward pressure on the merging firm's marginal costs of labor (for the reasons described above) but have no effect on downstream prices or consumer welfare. In order to hire an extra worker, the monopsony must not only pay that worker a slightly higher wage rate but also pay all its other workers a slightly higher wage rate, because only by raising the wage can extra labor be induced into the marketplace . Such a case may arise when the merging firms compete with firms that operate either in different labor markets (e.g., if the product market is national, but the labor market is local) or with a different form of production (e.g., one production technology relying primarily on labor, and one relying primarily on capital). Again, one should be aware that merging firms' output can change when market output does not.15 By the definition of monopsony power, such a merger would reduce the output (i.e., corn) of the merging firms. [Extracted from the article]

Brenda Gisela Hernández Ramírez became Acting Chair Commissioner of Mexico's COFECE on September 10, 2021, having served as a Commissioner in 2016. BRENDA HERNÁNDEZ: We are collaborating with these agencies, in fact for one of these internal forums organized by COFECE's digital markets unit in the weeks to come, we have plans to invite the data privacy agency. BRENDA HERNÁNDEZ: Since 2013, we have two authorities in charge of competition, access, and in general, of antitrust law. I think that not just that these two authorities have to act quickly -- in accordance with times set to comply with due process -- but so does the judicial power. [Extracted from the article]

The states are also still working on a number of other pharmaceutical cases: the states' Subox-one product-hopping case that I lead and the price-fixing cases against the generic drugs industry led by a team from Connecticut, New York, and Florida, amongst others. Section Chair & Moderator; Arnold & Porter Kaye Scholer LLP, Washington, DC QUESTIONER Melanie L. Aitken Bennett Jones (US) LLP, Washington, DC SPEAKERS Gwendolyn J. Cooley NAAG Representative, Office of the Attorney General, Madison, WI Alexandre Cordeiro Macedo President, Conselho Administrativo De Defesa Economica (CADE), Brasilia Hon. Jonathan S. Kanter Assistant Attorney General, U.S. Department of Justice, Antitrust Division, Washington, DC Hon. Lina M. Khan Chair, Federal Trade Commission, Washington, DC Margrethe Vestager Executive Vice President & Commissioner, European Commission, Brussels JONATHAN GLEKLEN: Welcome, everybody, to the Enforcers' Roundtable, always a highlight of the Spring Meeting, and this year is no exception. My guess is a number of U.S. companies, maybe a couple of Chinese companies, maybe a couple of European companies as well. One week later that same company notified CADE about buying another company that had another dam in the same city. There are also consumer tech cases, like the New Mexico settlement with Google over Children's Online Privacy Protection Act violations; and Attorneys General from D.C., Indiana, Texas, and Washington also have another litigation against Google for its location-tracking practices and -- my favorite phrase -- dark patterns. [Extracted from the article]

While multiple antitrust bills introduced in Congresshave gotten more press attention, the reality is thatproposed state legislation pending in New York appearsmore likely to be enacted into law. The Act delegates to the New York Attorney General theresponsibility for interpreting and enforcing the newantitrust law, which critics fear would give the officean outsized role in regulating the State's commerce31without providing sufficient clarity about what conductis illegal under the new regime or ensuring the officewould have the sufficient resources to do so effectively. 23 Non-Compete Agreements in New York State, FrequentlyAsked Questions, N.Y. STATE ATT'Y GEN.,https://ag.ny.gov/sites/default/files/ non-competes.pdf;see also S.734, 2021-2022 N.Y. Leg. [Extracted from the article]

The film is based on the real-life events of the case and Kurt Eichenwald's gripping true crime book on the conspiracy, also called The Informant (but without the exclamation point).7 The movie version is more than watchable but marred by a focus on the lead character's delusions in an odd joking manner which can be a bit off-putting. 16 Grosse Pointe Blank (Hollywood Pictures, Caravan Pictures, New Crime Productions 1997). The most prominent non-fiction about the criminal side of antitrust is by Kurt Eichenwald, The Informant from 2001.43 This is the book that gave rise to the movie already discussed and covers the now infamous lysine price fixing cartel involving ADM and its international competitors. Tovarich is a 1963 Broadway musical about post-revolutionary Russian nobility in Paris, primarily known for the Tony winning performance of Vivien Leigh in her only Broadway musical appearance.18 Most notably, on track eight of the soundtrack the cast gathers at a party to discuss dividing up world oil markets and treats us to a rendition of "A Small Cartel" with its rousing chorus "We all live in a small cartel, a small cartel, a small cartel ". [Extracted from the article]

JANA PALACIOS (JP): I think it is important to start by noting that at the time of my appointment as a Commissioner in Cofece there were several coincidences. When Alejandra "Jana" Palacios first started in her role as Commissioner President of the Mexican Federal Competition Commission (Cofece) in September 2013, she brought with her a reputation as someone who would not bend easily when it came to being tough on cartels and other anticompetitive behaviors. Cofece needs this information to carry out its studies and investigations, which leads to Cofece frequently requesting this information from the regulators. JP: I had the fortune of having an extraordinary team of Commissioners who formed, together with me, the first Board of Commissioners of Cofece. [Extracted from the article]

CONGRESS PASSED OUR FOUNDA-tional antitrust statutes in the late 1800s and early 1900s to address concerns over the negative economic effects of monopolies and business trusts existing or developing in that era. Nevertheless, AT&T reportedly raised prices after the merger, "raising some bills by fifty percent."32 This bill operates by forbidding a covered platform operator from acquiring another firm or its assets. L. Rev. 1655, 1672 (2020); Elhauge, supra note 4, at 1299 ("Empirical analysis of mergers indicates, for example, that merger policy in the past thirty years has mistakenly allowed many mergers that turned out to increase prices."). Increased industry consolidation and dominant-firm conduct impact society in ways that extend far beyond increased prices. [Extracted from the article]

See also Federal Trade Commission, Horizontal Merger Investigation Data: Fiscal Years 19962011 (January 2013) (showing very few enforcement actions in markets with a post-merger HHI of less than 2400, among mergers that received second requests from the FTC, except for grocery markets and oil markets). The goal was to tighten merger enforcement by raising the HHI thresholds, focusing attention and resources on the mergers most likely to harm competition, and assertively enforcing at those new levels, thereby deterring firms from proposing mergers well above the new enforcement thresholds. However, the average post-merger HHI for litigated mergers from 2000 to 2010 was a whopping 6535, and the average increase in the HHI was 1987, vastly above the 100 level in the 1992 HMGs.30 When the HMGs were updated in 2010, the Agencies sought to substantially narrow this gap. The average post-merger HHI for litigated mergers from 2010 to 2020 was 5805, and the average increase in the HHI was 1938.31 These data suggest that merger enforcement over the past twenty years has failed to stop some firms from attempting mergers to duopoly or even monopoly, well beyond the levels presumed to be anticompetitive. [Extracted from the article]

53 Michael Carrier, The Four-Step Rule of Reason, Antitrust, Spring 2019, at 51 ("Between 1999 and 2009, courts dismissed 97 percent of cases at the first stage, reaching the balancing stage in only 2 percent of cases."); As then-FTC Commissioner Thomas Rosch observed in 2010, litigation involving "fast-moving, high-tech markets" does "not fit snugly into the drawn out litigation process that we have in the U.S."91 Or, as one antitrust lawyer described it more colorfully, "[t]he problem with these cases is that they sometimes get to trial at the start of the next geological period."92 In fact, the time needed to bring a case to trial may benefit defendants in consummated merger or conduct cases. That work would inform on-going litigation and could culminate in a set of litigation guidelines that would provide assistance in specific cases much in the way that the horizontal merger guidelines have supplied courts with a framework for analysis. Where potential or nascent competition is important, either in a merger or conduct case, "it can be difficult for governmental or private plaintiffs to prove that nascent or potential rivals are a competitive threat, even when that is in fact the case, simply because these firms, lack a track record showing what they can do."68 But monopolies are not free "to squash nascent, albeit unproven, competitors at will."69 Thus, as two commentators have written, "[t]he proper approach does not require proving...that successful entry in the "but-for" world by the excluded innovator would necessarily or probably have occurred.". [Extracted from the article]

Epic v. Apple hints at, but does not address, another scenario in which privacy protections may be cognizable as a procompetitive justification, when the court observes Apple's requirement that apps make certain privacy disclosures to users.99 It is common for digital platforms to require that third-party services provide certain privacy disclosures, or privacy options, to consumers. MAJORITY STAFF REPORT AND RECOMMENDATIONS 55 (2020), https://judiciary.house.gov/uploadedfiles/competition%5Fin%5Fdigital%5Fmarkets.pdf (quoting testimony from Tile Chief Privacy Officer and General Counsel Kirsten Daru that "Apple has used the concept of privacy as a shield" for anticompetitive conduct); id. at 358 (summarizing Apple's position that its disparate treatment of applications is driven by differences in data storage practices that impact privacy and security risks). However, this type of normative privacy claim is not cognizable as a justification under current antitrust case law.84 The Epic v. Apple decision goes on to accept a second privacy-related justification for Apple's app store restraints: the promotion of interbrand competition between mobile operating systems. Like the retailers who freeride on the investments of other retailers in service and showrooms, Apple would then lose sales to Epic, the privacy-quality discounter.95 Privacy would erode to a level below that preferred by customers, as Apple loses the margin that enables it to maintain app store privacy quality. [Extracted from the article]

White (at 12-13) specifically urges theagencies to be more active (as they have become) inevaluating the competitive effects of non-compete clausesthat prevent workers from leaving one firm for higherwages at another. 10 While not explicitly discussed by White, there havebeen increasing concerns over the so-called "killeracquisitions" where firms with market power acquireseemingly innocuous smaller firms which might otherwisehave become viable competitors to the dominant firm. Like White, Davis et al. (at 31-33) point as well tolitigation challenging "no poaching" agreements in (amongothers) the fast-food industry which "employspredominantly low-wage workers of color" as a means touse traditional antitrust tools to improve wages andbenefits for minority workers. For example, White notes (at 9) that thereare proposals for the "slicing and dicing" of Facebook tocreate a number of "mini" Facebooks competing forpatronage of consumers and advertisers.8 White advises (at 9-10) that the "break-up" history inthe U.S. is not a particularly helpful guide to a breakupof "big tech.". [Extracted from the article]

And the Department of Justiceshould have just as much leeway because the Sherman Actdirected the Attorney General to institute proceedings to"prevent" violations.69 Lina M. Khan's writings before becoming FTC Chair placeher in the vanguard of a populist movement advocatingradical reform, but a radical agenda as FTC Chair likelywould be stymied by the courts. During a stint at the Open Markets Institute, Lina M.Khan wrote a manifesto for the New Brandeis Movementadvocating greater government control over the economy.1As the Federal Trade Commission Chair, Khan is trying totake a step in that direction. The FTC concluded that the practiceswere partly to blame for the industry's noncompetitiveperformance and ordered the two largest producers, Ethyland du Pont, to cease using them.41 In vacating the FTC's order, the Second Circuit reasonedthat: As the Commission moves away from attacking conduct thatis either a violation of the antitrust laws or collusive,coercive, predatory, restrictive or deceitful, and seeksto break new ground by enjoining otherwise legitimatepractices, the closer must be our scrutiny upon judicialreview. [Extracted from the article]

Framework and Key Concepts of Platform Guidelines Article 3 of the Platform Guidelines makes it clear,right from the beginning that the regulatory frameworkfor the platform economy sectors is the same as for othersectors.5 As such, the Platform Guidelines are tools tofurther operationalize the principles and approachesstipulated in current antitrust legislation, i.e., theAML, in light of the emergent nature and complexity ofissues involved in the platform economy sectors. The Platform Guidelines point out that the term"Platform" refers specifically to "internet platforms,"which excludes other types of multi-sided markets, suchas a brick-and-mortar shopping mall or newspapers. 5 SAMR, Interpretation of the State Council Anti-MonopolyCommission Anti-Monopoly Guidelines on Platform EconomySectors (Feb.7, 2021),http://gkml.samr.gov.cn/nsjg/xwxcs/202102/t20210207%5F325970.html.(in Chinese) 6 Online platforms are the platforms that assemble,search, review, and match users with sets of products andsellers. On February 7, 2021, China's antitrust authority, StateAdministration for Market Regulation (SAMR) published theState Council Anti-Monopoly Commission Anti-MonopolyGuidelines on Platform Economy Sectors (PlatformGuidelines), less than three months following SAMR'sunveiling of a preliminary draft in November 2020.1 Indeed, many leading players in China have been bracingthemselves for the expected antitrust regulatory waves atthe highest levels in the past 12 months, in particularin the digital platform economy sector. [Extracted from the article]

It is therefore critical for in-house counsel tounderstand fully the particular nature of the CSI thatthe firm will be receiving, the client's business plans,the client's organizations and data management structure,and how CSI may be used in a manner consistent withantitrust laws. From both a legal and business perspective, it isimportant that the firm's suppliers, customers andcompetitors know that the vertically integrated firm istaking seriously its obligations to safeguard CSI thatcould potentially be used in an anticompetitive manner. Firms seekingto vertically integrate therefore need to be prepared forpotential investigations and recourse because antitrustenforcers will want to ensure that CSI does not lessencompetition after a firm merges with a partner in thesupply chain. In-house counsel often face the challenge of ensuringthat their organization properly maintains competitivelysensitive information ("CSI"), a challenge that becomesdramatically more complex when the organization isvertically integrated and transacts with third partieswho are suppliers or customers on the one hand, andcompetitors on the other. [Extracted from the article]

Application of Complementarity to Mergers ofMultiproduct Firms In addition to the settings described above, theprocompetitive effects of merging complementary productsor services also apply to mergers of multiproduct firms. However, once the role of product Z is considered, anyincentive to raise prices on substitute goods A, B, and Cmay be overwhelmed by incentives to lower prices togenerate demand for complementary product Z. In thiscase, ignoring the role of product Z may cause aprocompetitive merger to be blocked. Even in the absence of merger efficiencies (e.g., savingsfrom the merger's reduction of variable costs),fundamental economics imply that it is plausible that amerger of multi-product firms that sell a mix ofsubstitutes and complements is procompetitive. However, to help confirm ourpizza/soda merger would result in incentives to lowerprices, quantitative estimates of the influence of theprice that one product has on the demand for another canbe obtained through more sophisticated econometrictechniques that account for additional factors that alsopotentially affect product demand. [Extracted from the article]

IN 2014, JOSÉ AZAR, MARTIN SCHMALZ, ANDI posted a working paper titled "Anti-CompetitiveEffects of Common Ownership" (AST).[1]In that paper,we documented that financial investors frequentlyhold ownership interests in competing firms, whichwe referred to as "common ownership." For example, all owners should be infavor of a firm participating in a hypothetical legal cartelinvolving all firms in the industry. Firm owners seek to maximize the value of the overallportfolio of firms in which they are invested. Critics point out that, even if owners can transmit theirincentives to firms using general mechanisms like those discussedabove, different owners will likely disagree on thecompetitive actions a firm should take. [Extracted from the article]

For one thing,what each Member State doesn't like is acquisition by otherStates--having, let's say, Chinese firms willing to overpayfor their own companies, especially if they are willing toinvest locally, is not something that governments complainespecially about. Therefore, the third country firm will have ahigher valuation because of the lack of access to their homemarket and they would tend to outbid our companies as well. For imposing essentially State-aid rules on the operationof foreign firms within the single market I have no problembecause it is just treating those firms the same way wetreat European firms, but how it is going to be enforced isanother issue. And then, when you think of a merger betweentwo companies that have different sets of products, somewhatoverlapping, and also have different sets of informationabout consumers. [Extracted from the article]

Instead,she relied on the notion that courts "generally defer to agencies,"which would minimize private challenges to the newguidance.[30] As FTC Chair, Khan has been consistent and equallyblunt in her view of what new merger guidelines should andshould not encompass. Hence, if any new merger guidelines--like the recent 2020 Vertical Merger Guidelines--continueto operate with an underlying consumer-welfare frameworkin mind, we can expect the courts to be receptive, even ifit moves the ball forward to some degree toward a moreexpansive view of consumer welfare. Moreover, as we all know, thegovernment (and the court) actually gave procompetitivecredit to the parties based on the theoretical concession thatvertical mergers result in the elimination of double marginalization;46 hence, for vertical mergers, any presumptionsrelating to likely price effects--at least in the courts--tendto run the other way. [Extracted from the article]

Thus,where the transaction platforms referenced in Amex providean exchange service bringing buyers and sellers together,OS-intermediated platforms engage in a range of far morecomplicated intermediations that may form their own productor service markets, some of which may be transactionmarkets. Indeed, though this principleremains somewhat controversial, the Amex court madeclear that, at least in cases involving transaction platformsand alleged non-price vertical restraints directly related tothose transactions, the appropriate metric to assess allegedharm remains whether an increase in prices or a reductionin output or innovation occurred. MOST ANTITRUST PRACTITIONERS have at least a rudimentary understandingof platforms, if not from a readingor two of the Supreme Court's decisionin Amex,[1]then from the extensive andongoing investigations, cases, and ad nauseam discussionsand debates surrounding big tech platforms. Transaction providers usuallyseek greater profits through more transactions; however, thedefining consideration highlighted by Amex and the economicsliterature upon which it relies is that the value ofa provider's network on a per-user/transaction basis can beaffected by the size of the network, and in particular the sizeof the population on each side of the transaction platform. [Extracted from the article]

18 See, e.g., Complaint, United States, v. Google LLC, No. 1:20-cv-03010, at 7 (D.D.C. Oct. 20, 2020) (arguing Google has monopolies in both "the markets for search advertising and general search text advertising"). Forthose concerned with the concentration of private informationin the hands of a few companies, these changes maymake the world worse, not better.[33] Conversely, those concerned with concentration of dataon the Internet may want to break up the big data monopolies,if not the companies themselves. 32 While it's not impossible to require companies to purge information--see the "Right to Erasure" in Article 17 of the GDPR--it is hard to purge the effects of data a company once had and used to target advertising or content. EVERYONE WANTS TO REGULATE THE big tech companies--Amazon,Apple, Facebook,and Google.1 Companies that were darlingsof the media and government a decade agoare now under attack from all directions. [Extracted from the article]

That's a legitimate questionI think, and I would prefer that, as I think Glen would,to saying, "Twitter is just too powerful; we need to have aboard to decide what is allowed to be said on Twitter" or"We need to have a board that decides how Twitter is run,"which I think is more what Glen is pointing to. The conversation with Antitrust magazine inspired RussRoberts and Glen Weyl to have a follow-up conversationat EconTalk. But the other part is that I think economists for a longtime have argued-- and Glen is giving a richer version of thisthan historically has been the case--that the goal of theselaws should be to protect consumers because firms gettinghurt can just go and reassemble themselves; if a firm goesbankrupt, it's not a death; there might be a transition periodthat's challenging--economists often admit that, not easily,but they will if you press them--but there's no tragedy whena firm goes out of business in the general sense of the word. Russ Roberts is thepresident of ShalemCollege in Jerusalem andis the John and Jean DeNault Research Fellowat Stanford University'sHoover Institution. [Extracted from the article]

ANTITRUST: Just following up on the merger provisions fora minute, your bill proposes to change the standard from"where the effect may be substantially to lessen competitionor tend to create a monopoly" to "where it creates an appreciablerisk of materially lessening competition or tends tocreate a monopoly or a monopsony." KLOBUCHAR: I think the government-- and anyone inantitrust would tell you this--they had to put a pause onearly termination of merger reviews at the FTC becausethey're so overwhelmed by the number of filings. And then, finally, the mergers that are coming before us.My bill would strengthen the enforcement of mergers, and Ithink that would be really good. As part of our ongoing conversation about thefuture of antitrust law, we were delighted to catch up with SenatorAmy Klobuchar, senior Senator from the State of Minnesota.Chair of the Judiciary Subcommittee on Competition Policy, Antitrust,and Consumer Rights, Senator Klobuchar has long beenan advocate for reform of antitrust and competition policy, andshe has introduced a number of bills designed to meet the competitionchallenges of our 21st century economy. [Extracted from the article]

In short, when in the past courts have faced overlappingClayton and Sherman Act merger claims, they havebegun--and often also ended--their analysis with the moreplaintiff-friendly Clayton Act analysis because atransaction lawful under the Clayton Act must also belawful under the Sherman Act. Since 2017,the FTC has alleged Section 2 claims in FTC v.Mallinckrodt, Illumina, and FTC v. Facebook, while theDOJ did so in United States v. Visa Inc.22 In each casesave Facebook, the parties abandoned the transaction orsettled the claim, leaving the underlying legal theoryuntested. The Department of Justice and Federal Trade Commission(the Agencies) recently have asserted that plaintiffscould more easily challenge the acquisition of a nascentcompetitor1 under Section 2 of the Sherman Act than theycan under Section 7 of the Clayton Act. [Extracted from the article]

The article discusses various topics related to monopolization and antitrust law. It explores the concept of self-preferencing by monopolists and the debate surrounding its legality. The article also includes discussions on best practices in trying a Section 2 case, an alternative competition regime in the shipping industry, anti-monopoly enforcement in China, and the history and status of the Antitrust Division's Leniency Program. Additionally, it covers lessons learned from trans-Atlantic challenges in mergers, multinational merger enforcement, interlocking directorates in private equity, the efficiencies defense in merger reviews, and personal jurisdiction in antitrust class actions. [Extracted from the article]

On the merger side, Congress should look to do twothings: (1) The 1968 Merger Guidelines are a good model,they set out some clear market share tests on the types ofhorizontal, vertical, and conglomerate mergers that are illegal;and (2) supplement this with restrictions on mergersand acquisitions by large corporations -- in other words,place limits on consolidation involving firms above a certainasset or revenue threshold. Bork thought competition arosewith three firms, Posner wanted to attack four-firm concentrationat 60 percent, and Baxter's Merger Guidelines createdthresholds corresponding to reductions in the numberof competitors from six-to-five. He wrote in The NewYork Times that he thinks that companies with higher-qualityflour that they sell for $6 a bag are better than mass-marketflour companies that are selling flour for $2 a bag. I am content with the result, butthe Court should have made clear that if a branded companypays a generic and there is a restriction on entry, itis the branded company's job to explain what the brandedcompany got in exchange for that payment, not the plaintiff's job to prove it was "unexplained." I am not sure that wehave the confidence to say, "Oh, everyone has to have a labinside the company and create their own products", versushaving the ability for many, many startup companies, to createthese things, and then to have companies that think itwould be a valuable input to their innovation to purchasethem through acquisition. [Extracted from the article]