Digital Commons Network^™

Introduction: Big Data And Competition Policy, Maurice Stucke

Scholarly Works

Big Data and Big Analytics are a big deal today. Big Data is playing a pivotal role in many companies' strategic decision-making. Companies are striving to acquire a 'data advantage' over rivals. Data-driven mergers are increasing. These data-driven business strategies and mergers raise significant implications for privacy, consumer protection and competition law. At the same time, European and United States' competition authorities are beginning to consider the implications of a data-driven economy on competition policy. In 2015, the European Commission launched a competition inquiry into the e-commerce sector and issued a statement of objections in its Google investigation. The implications …

Debunking The Myths Over Big Data And Antitrust, Maurice Stucke, Allen Grunes

Scholarly Works

What are the implications of Big Data on competition policy? Some argue little, if any, and offer several reasons why Big Data is a passing fad. We disagree.

As we discuss, competition law can play an important role in maximizing the benefits of a data-driven economy, while mitigating its risks. Our aim here is to first address the competitive significance of Big Data and, second, take on ten myths downplaying Big Data’s antitrust significance.

The Beneficent Monopolist, Maurice Stucke, Allen Grunes

Scholarly Works

In examining Comcast's proposed acquisition of Time Warner Cable (TWC), we assess three of the arguments Comcast likely will make to the Department of Justice and FCC. Comcast will likely argue that its acquisition of TWC is unlikely to lessen competition because: (a) the broadband market is becoming more competitive: Google has introduced Google Fiber in a number of markets, and mobile broadband offered by wireless providers like AT&T and Sprint is competitive with fixed broadband; (b) Netflix and traditional media companies have sufficient clout to negotiate with Comcast and the government should not intervene on their behalf; and (c) …

The Implications Of Behavioral Antitrust, Maurice Stucke

Scholarly Works

Behavioral economics is now mainstream. It is also timely. The financial crisis raised important issues of market failure, weak regulation, moral hazard, and our lack of understanding about how many markets actually operate.

As behavioral economics (with its more realistic assumptions of human behavior) goes mainstream in academia and the business world, one expects lawyers and economists to bring the current economic thinking to the competition agencies. How should the competition agencies respond?

This paper examines how competition authorities can consider the implications of behavioral economics on four levels: first as a gap filler, i.e., to help explain “real world” …

Reconsidering Antitrust's Goals, Maurice Stucke

Scholarly Works

Antitrust policy today is an anomaly. On the one hand, antitrust is thriving internationally. On the other hand, antitrust’s influence has diminished domestically. Over the past thirty years, there have been fewer antitrust investigations and private actions. Today the Supreme Court complains about antitrust suits, and places greater faith in the antitrust function being subsumed in a regulatory framework. So what happened to the antitrust movement in the United States?

Two import factors contributed to antitrust policy’s domestic decline. The first is salience, especially the salience of the U.S. antitrust goals. In the past thirty years, enforcers and courts abandoned …

Crony Capitalism And Antitrust, Maurice Stucke

Scholarly Works

In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation’s four largest mobile wireless telecommunications services providers, AT&T Inc. and T‑Mobile USA, Inc. But why are so many elected officials asking the Obama administration to intercede in the Department of Justice’s lawsuit to force a settlement? Why are they approving a merger that would likely lead to higher prices, fewer jobs, less innovation, and higher taxes for their constituents? Does it have anything to do with the money they are receiving from AT&T and T-Mobile?

This Essay examines the recent …

A More Critical Use Of Fairness Opinions As A Practical Approach To The Behavioral Economics Of Mergers And Acquisitions, Joan Macleod Heminway

Scholarly Works

This paper responds to Professor Donald C. Langevoort's essay entitled "The Behavioral Economics of Mergers and Acquisitions" (12 Transactions: Tenn. J. Bus. L. 65 (2011)). Together with Professor Langevoort's essay and another responsive work written from the standpoint of behavioral psychology – Eric Sundstrom's "Tall Steps, Slippery Slopes & Learning Curves in the Behavioral Economics of Mergers & Acquisitions" (12 Transactions: Tenn. J. Bus. L. 65 (2011)) – this paper preliminarily explores solutions to behavioral issues in the context of mergers and acquisitions.

Specifically, this paper contends that changes in the contents, construction, use, and assessment of fairness opinions may …

Antitrust 2025, Maurice Stucke

Scholarly Works

Antitrust policy in the United States has roughly twenty to thirty year cycles. So if past cycles are reliable indicators of future ones, we are at (or approaching) a new antitrust policy cycle, with 2025 being the approximate midpoint.

Any new policy cycle will be defined by three fundamental questions: a. What is competition? b. What are the goals of competition law? c. What should be the legal standards to promote these goals?

Rather than predict the state of antitrust policy in 2025 (such as more or less cartel enforcement), this Essay maps two scenarios based on these three fundamental …

Federal Interventions In Private Enterprise In The United States: Their Genesis In And Effects On Corporate Finance Instruments And Transactions, Joan Macleod Heminway

Scholarly Works

In response to U.S. corporate failures involved in the current global financial crisis, traditional corporate finance vehicles and tools were widely used in new ways and for new purposes. Of course, one object of the U.S. government’s investment and intervention in, and exercise of influence over, private enterprise during the crisis was to provide for or ensure the provision of adequate capital funding. But its investment, intervention, and influence also represented a new way to oversee and otherwise regulate key business enterprises in the financial services and automotive sectors. This Article reviews certain aspects of the use of preferred stock, …

Behavioral Economists At The Gate: Antitrust In The 21st Century, Maurice Stucke

Scholarly Works

Although tossed against the rocks elsewhere, the Law and Economics' rational choice theories, within the quiet waters of antitrust, stand largely unchallenged. Antitrust's economic theories, premised on 'rational' profit maximizing behavior, enjoy the deep slumber of a decided opinion. Although Post-Chicago School antitrust theories have developed, the Chicago School's rational choice theories still dominate. This article explores some possible paradoxes and anomalies with respect to antitrust's merger theories. It appears anecdotally that some corporate behavior is (or is not) occurring which is not readily explainable under the Chicago School's theories. It is an empirical question as to the degree the …

Evaluating The Risks Of Market Swaps, Maurice Stucke

Scholarly Works

An asset swap between two competitors can be (i) per se illegal under Section 1 of the Sherman Act or (ii) a potentially legitimate sale of assets under Section 7 of the Clayton Act. The case law and antitrust commentary vary as to which standard should be applied, and the impication can be significant for the business entities contemplating the deal. This article outlines five factors to assist in evaluating the asset swap's legality under the federal antitrust laws, and the critical determination of which standard to apply to a potentially high risk transaction.