Antitrust and Trade Regulation Commons^™

Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, Camilla A. Hrdy, Christopher B. Seaman

Scholarly Articles

There is a substantial literature on noncompete agreements and their adverse impact on employee mobility and innovation. But a far more common restraint in employment contracts has been underexplored: confidentiality agreements, sometimes called nondisclosure agreements (NDAs). A confidentiality agreement is not a blanket prohibition on competition. Rather, it is simply a promise not to use or disclose specific information. Confidentiality agreements encompass trade secrets, as defined by state and federal laws, but confidentiality agreements almost always go beyond trade secrecy, encompassing any information the employer imparted to the employee in confidence.

Despite widespread use, confidentiality agreements have received little attention. …

Pooling And Exchanging Competitively Sensitive Information Among Rivals: Absolutely Illegal Not Just Unreasonable, Peter C. Carstensen, Annkathrin Marschall

University of Cincinnati Law Review

An agreement to exchange competitive sensitive information among rivalrous competitors usually results from an intent to inhibit or restrict the discretion of those firms to engage in competition. Basic economic logic about competition leads to that conclusion. Hence, such an exchange is in itself a naked agreement in restraint of trade without legal justification. Currently, case law requires a more convoluted and irrelevant inquiry into market definition and market power before a court can condemn such agreements. This is the result of ambiguous Supreme Court decisions as well as the recognition that in a few instances there are plausible arguments …

Equalizing The Playing Field: The Time Has Come For Secondary Meaning In The Making In Small Restaurant Trade Dress Infringement Cases, John Pesek

Journal of Food Law & Policy

Imagine it is opening day for your first restaurant. It has taken months, if not years, to get to this point and you have spent a lot of money in developing the menu, artist style, and feel for the restaurant. A few months after the opening of your restaurant, a competing restaurant, right down the block from your restaurant, opens its doors; its menu and overall look are virtually indistinguishable from your restaurant. You are left wondering what remedies, if any, you have as a small restaurant owner. This was the case for Chef Rebecca Charles and her Pearl Oyster …

Ecosystem Competition And The Antitrust Laws, Daniel A. Crane

Articles

Conventional antitrust norms analyze market power—as a stepping stone to anticompetitive effects and, hence, prohibited conduct—from the perspective of product substitutability. Two goods or services are said to compete with one another when they are reasonably interchangeable from the perspective of consumers, or to put it in more formal economic terms, when there is cross-elasticity of demand between them. Conversely, when two goods or services are not reasonably interchangeable, they are not horizontally related and are said not to compete with one another. Since a concern over horizontal agreements and horizontal effects dominate antitrust—courts even analyze vertical agreement or merger …

Defining Unreasonable Radius Clauses For American Music Festivals, Trevor Lane

Seattle University Law Review

Since 1969, the music festival remains a staple of American musical culture, and in order to meet consumer demands, today’s music festival promoters rely on radius clauses ancillary to the performance agreements that they use with artists. These radius clauses limit artists’ ability to perform at other music festivals and concerts within a specified temporal and geographic radius of the contracted music festival. Beginning in 2010, legal challenges have alleged that broadly defined radius clauses used by music festival promoters violate Section 1 of the Sherman Antitrust Act. This Note contends that radius clauses which limit artists from performing beyond …

The United States, Developing Countries And The Issue Of Intra-Enterprise Agreements, Joel Davidow

Georgia Journal of International & Comparative Law

Antitrust issues have become one of the main concern of the world economy community and the United Nations. For many years, the United Nations Conference on Trade and Development has multiplied the meetings to discuss the relationship between transnational enterprises and international investment and has engaged in reflections on methods to avoid a decline in international investment. However, these meetings failed to resolve the fundamental issue of the impact of international antitrust principles on restrictive arrangements between a foreign parent corporation and its local subsidiary, particularly where that subsidiary is in a developing country. If applied, multinational enterprises would be …

Evaluating Joint Ventures: Economic Analysis Checklist, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This short article (for a symposium on joint ventures) provides practitioners and law professor with a 20 question checklist to guide the competitive effects analysis of the formation of a joint venture and the specific restraints and conduct of the venture. The questions mainly focus on ventures among actual or potential competitors, though some of the questions also are relevant for ventures involving complementary product firms. The questions concern potential competitive harms, potential competitive benefits, and the determination of net competitive effects. While this sequencing follows the standard burden-shifting formulation of the rule of reason decision process, the article notes …

Tying And Bundled Discounts: An Equilibrium Analysis Of Antitrust Liability Tests, Melanie S. Williams

Melanie S. Williams

Courts have struggled with determining when bundled discounts constitute unlawfully anticompetitive behavior. The current circuit split reflects an absence of consensus. This lack of legal guidance creates uncertainty in the market, with firms being given inconsistent – and sometimes contradictory - standards on how to avoid antitrust liability.

For the most part, we consider a standard paradigm for analyzing bundled discounts. Suppose that there are two firms. Firm 1 produces a monopoly product, A, and also another product, B, which competes with another version of B produced by Firm 2. The concern is the extent to which the price paid …

E-Books, Collusion, And Antitrust Policy: Protecting A Dominant Firm At The Cost Of Innovation, Nicholas Timchalk

Seattle University Law Review

Amazon’s main rival, Apple, went to great lengths and took major risks to enter the e-book market. Why did Apple simply choose not to compete on the merits of its product and brand equity (the iPad and iBookstore) as it does with its other products? Why did Apple decide not to continue to rely on its earlier success of situating its products differently in the market than other electronics and working hard to be different and cutting-edge with its e-book delivery? This Note argues that the combination of Amazon’s 90% market share, network externalities, and an innovative technology market creates …

Tesla And The Car Dealers' Lobby, Daniel A. Crane

Articles

Tesla Motors, the offspring of entrepreneur Elon Musk (who brought us Pay-Pal and SpaceX), is the most exciting automotive development in many decades and a marquee story of American technological dynamism and innovation. The company’s luxury electric cars have caused a sensation in the auto industry, including a review by Consumer Reports calling Tesla’s Model S the best car it ever tested. Despite the acclaim, Tesla faces enormous challenges Despite the acclaim, Tesla faces enormous challenges in penetrating an automotive market that has been dominated for a century by internal combustion engines. Not only must it build cars that customers …

Rankings, Reductionism, And Responsibility, Frank Pasquale

Frank A. Pasquale

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

Rise Of The Intercontinentalexchange And Implications Of Its Merger With Nyse Euronext, Latoya C. Brown

Latoya C. Brown, Esq.

This paper examines the impending merger between the IntercontinentalExchange (ICE) and NYSE Euronext against the backdrop of the current structure of the global financial services industry. The paper concludes that the merger embodies what the financial services industry is becoming and captures the model that will allow exchanges to remain competitive in today’s marketplace: mega-exchanges with broader asset classes and electronic platforms. As technology and globalization threaten their vitality, exchanges will need to continue reinventing and adapting. Increasingly over the last decade they have done so by merging and by moving, at least a part of, their operations on screen. …

Propiedad Intelectual Y Prácticas Monopólicas, Carlos Mena-Labarthe, Alejandro Hernández Alva

Carlos Mena-Labarthe

El estudio hace un recuento de algunos de los principales problemas y cuestiones que se pueden presentar en la relación de la propiedad intelectual con el Derecho de competencia, en particular en la regulación de las prácticas monopólicas.

Acuerdos Entre Competidores Y Su Regulación En El Derecho De Competencia, Carlos Mena-Labarthe

Carlos Mena-Labarthe

No abstract provided.

Competencia Económica En El Sector Inmobiliario Y Sus Principales Transacciones, Carlos Mena-Labarthe

Carlos Mena-Labarthe

Estudio de la regulación de competencia y su impacto en las principales transacciones inmobiliarias. Se estudia la experiencia mexicana y se compara con otras experiencias.

Rankings, Reductionism, And Responsibility, Frank Pasquale

Faculty Scholarship

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

Exclusionary Conduct, Effect On Consumers, And The Flawed Profit-Sacrifice Standard, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The central thesis of this article is that the use of the profit-sacrifice test as the sole liability standard for exclusionary conduct, or as a required prong of a multi-pronged liability standard is fundamentally flawed. The profit-sacrifice test may be useful, for example, as one type of evidence of anticompetitive purpose. In unilateral refusal to deal cases, it can be useful in determining the non-exclusionary benchmark. However, the test is not generally a reliable indicator of the impact of allegedly exclusionary conduct on consumer welfare - the primary focus of the antitrust laws. The profit-sacrifice test also is prone to …

Guilds, Laws, And Markets For Manufactured Merchandise In Late-Medieval England, Gary Richardson

Gary Richardson

The prevailing paradigm of medieval manufacturing presumes guilds monopolized markets for durable goods in late-medieval England. The sources of the monopolies are said to have been the charters of towns, charters of guilds, parliamentary statutes, and judicial precedents. This essay examines those sources, demonstrates they did not give guilds legal monopolies in the modern sense of the word, and replaces that erroneous assumption with an accurate description of the legal institutions underlying markets for manufactures in medieval England.

Competition Policy In America 1888-1992: History, Rhetoric, Law, Rudolph J.R. Peritz

Books

Americans have long appealed to images of free competition in calling for free enterprise, freedom of contract, free labor, free trade, and free speech. This imagery has retained its appeal in myriad aspects of public policy--for example, Senator Sherman's Anti-Trust Act of 1890, Justice Holmes's metaphorical marketplace of ideas, and President Reagan's rhetoric of deregulation.

In Competition Policy in America, 1888-1992, Rudolph Peritz explores the durability of free competition imagery by tracing its influences on public policy. Looking at congressional debates and hearings, administrative agency activities, court opinions, arguments of counsel, and economic, legal, and political scholarship, he finds …

Bribery And Brokerage: An Analysis Of Bribery In Domestic And Foreign Commerce Under Section 2 ( C ) Of The Robinson-Patman Act, Michigan Law Review

Michigan Law Review

This Note first analyzes the substantive and jurisdictional criteria of section 2(c) to evaluate the possible and the desirable scope of its applicability to commercial bribery. The Note next asks whether this statute reaches bribery of domestic and foreign government officials and concludes that where the requirements of section 2(c) are otherwise met and where the person accepting the bribe is acting administratively rather than politically, the statute could be applied to bribery of agents of domestic governments. However, a wholesale application of section 2( c) to bribery of foreign government agents would leave American competitors in foreign commerce defenseless …

Tying Arrangements Under The Antitrust Laws: The "Integrity Of The Product" Defense, F. Bruce Kulp Jr.

Michigan Law Review

One of the most frequently asserted defenses to an action under either the Sherman Act or the Clayton Act against a tying arrangement-a contractual limitation imposed by a manufacturer whereby the purchaser of the "tying product" agrees to purchase a related "tied product" only from the manufacturer of the tying product-has been that the tying was necessary to protect the good will or the integrity of the tying product. Whether the tied product is service for the tying product, another component in a system in which the tying product is used, repair parts for the tying product, or any other …

Trade Regulation-Robinson-Patman Act-Price Discrimination In The Marketing Of Gasoline, Howard R. Lurie S.Ed.

Michigan Law Review

The emergence of chain stores and mail-order houses in the 1920's posed a new threat to competition; this time at the retail level. The quantity purchase discounts which large buyers could exact placed the small independent merchant at a competitive disadvantage so substantial as to cast doubt upon his continued presence in the competitive picture. To prevent these competitive advantages, which were felt to be unfair and undesirable, Congress, in 1936, passed the Robinson-Patman Act which, in part, amended section 2 of the Clayton Act. The effect of the amendment was to tighten the application of the quantity purchase defense …

Price-Fixing Within The Barber Industry

Indiana Law Journal

No abstract provided.

Antitrust Considerations In Motor Carrier Mergers, Carl H. Fulda

Michigan Law Review

Unification of separate independent business enterprises in a single organization may raise important questions of antitrust policy. The entity which emerges may have acquired, as a result of such unification, a market position of such significance that a substantial lessening of competition or even the creation of a monopoly becomes not only possible but probable. This would be apparent whenever opportunities for buyers of the products or services of the new single unit to shop freely, and to make independent decisions as to prices, channels of purchases and selection of suppliers were to be seriously curtailed, or where such curtailment …

Price Discriminations And Their Justifications Under The Robinson-Patman Act Of 1936, John T. Haslett

Michigan Law Review

The Robinson-Patman Act was approved by the President on June 19, 1936. The purpose of the act was to amend section 2 of the Clayton Act, which prohibited price discriminations in interstate commerce. Congress, by amending section 2 of the Clayton Act, broadened the scope of the section by extending its purposes and prohibitions to price discriminations not formerly covered and by prohibiting other forms of discrimination which give favored purchasers undue cost advantages over their non-favored competitors. It also reduced the extent of requisite competitive injury.

Note And Comment, Edwin C. Goddard, George Seletto, Edson R. Sunderland, Victor H. Lane, Burke Shartel, George E. Longstaff

Michigan Law Review

Carriers - Second Cummins Amendment - It was seven years after the Carmack Amendment of the Hepburn Act of i9o6 before the Supreme Court began that series of decisions, extending from Adams Express Co. v. Croninger, 226 U. S. 491 (1913), to George N. Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278 (1915), which directly resulted in the First Cummins Amendment of March, 1915. One has only to read those cases, reviewed in 13 Micn. L. REv. 59o, and other notes referred to in 17 MICH. L. Rzv. 183, to see that the language of the Cummins …