Antitrust and Trade Regulation Commons^™

Sirius Mistake: The Fcc's Failure To Stop A Merger To Monopoly In Satellite Radio, Leigh M. Murray

American University Law Review

No abstract provided.

Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Michael A. Carrier

Michigan Law Review

A tidal wave of high drug prices has recently crashed across the U.S. economy. One of the primary culprits has been the increase in agreements by which brand-name drug manufacturers and generic firms have settled patent litigation. The framework for such agreements has been the Hatch-Waxman Act, which Congress enacted in 1984. One of the Act's goals was to provide incentives for generics to challenge brand-name patents. But brand firms have recently paid generics millions of dollars to drop their lawsuits and refrain from entering the market. These reverse-payment settlements threaten significant harm. Courts nonetheless have recently blessed them, explaining …

The Dragon In The Room: China's Anti-Monopoly Law And International Merger Review, Christopher Hamp-Lyons

Vanderbilt Law Review

In a world where mergers affect every corner of the planet, any government seeking competitive markets has an interest in ensuring that these mergers are not harmful to competition. As China, the world's most populous country, has committed to a market economy, it has now taken the momentous step of enacting its own Anti- Monopoly Law ("AML"). This effects a dramatic change in the antitrust regulation of multinational mergers. In international antitrust, even subtle legal differences between jurisdictions create significant potential for conflict. For this reason, the advent of antitrust merger review by a country with such massive international economic …

Revisiting Allied Tube And Noerr: The Antitrust Implications Of Green Building Legislation & Case Law Considerations For Policymakers, Stephen Del Percio

William & Mary Environmental Law and Policy Review

No abstract provided.

Complex Bundled Discounts And Antitrust Policy, Herbert Hovenkamp, Erik Hovenkamp

Buffalo Law Review

No abstract provided.

Expanding Definition Of Monopoly Leveraging, Eun K. Chang

University of Miami Business Law Review

No abstract provided.

Viewpoint Diversity And Media Ownership, C. Edwin Baker

Federal Communications Law Journal

A recent technically sophisticated study of the impact of media mergers on viewpoint diversity that found the impact is contextually variable should be entirely irrelevant to proper policy debates about regulation of media ownership. This Article examines the real reasons to oppose concentrated ownership and considers how the recent study went wrong.

The Role Of Theory And Evidence In Media Regulation And Law: A Response To Baker And A Defense Of Empirical Legal Studies, Daniel E. Ho, Kevin M. Quinn

Federal Communications Law Journal

We thank Professor Baker for a stimulating response to an Article in which we offered empirical evidence of editorial viewpoint diversity in the face of media consolidation. We appreciate his praise of the Article as "apply[ing] innovative statistical techniques" and as "far superior methodologically to most empirical studies" he has seen. At the same time, Baker "denies the policy relevance" to our Article because empirical evidence is "entirely irrelevant" to the field of media regulation under his preferred normative theory. Baker argues sweepingly that the legal academy's increased willingness to consider the perspectives of quantitative empiricists and positive theorists is …

Who Needs Tickets? Examining Problems In The Growing Online Ticket Resale Industry, Clark P. Kirkman

Federal Communications Law Journal

The Internet has dramatically changed the methods by which people purchase tickets to events. In the past decade, the secondary ticket market has grown exponentially, and today the online ticket resale industry is valued at approximately $4 billion. Although there are consumer benefits to this industry growth, some of the industry practices have precipitated a consumer backlash. This was typified in 2007 when many parents, hoping to purchase tickets to the Hannah Montana "Best of Both Worlds Tour," watched as tickets sold out online in only a few minutes or less. Coupled with this episode was the Ticketmaster v. RMG …

Dr. Miles Is Dead. Now What?: Structuring A Rule Of Reason For Evaluating Minimum Resale Price Maintenance, Thomas A. Lambert

William & Mary Law Review

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., the U.S. Supreme Court overruled its 1911 precedent declaring vertical minimum resale price maintenance (RPM) to be per se illegal. The Leegin Court held that the practice should instead be examined on a case-by-case basis under antitrust's rule of reason. The Court further exhorted the lower courts to craft a "structured" rule of reason for evaluating RPM. This Article critiques six proposed approaches for evaluating minimum RPM and offers an alternative approach. The six approaches critiqued are: (1) the Brandeisian, unstructured rule of reason; (2) Judge Posner's rule of per se …

The Economics Of Deal Risk: Allocating Risk Through Mac Clauses In Business Combination Agreements, Robert T. Miller

William & Mary Law Review

In any large corporate acquisition, there is an interim period between the time that the parties enter into a merger agreement and the time the transaction is effected and the purchase price paid. During this period, the business of the acquired company may deteriorate, thus raising the question of whether the counterparty must perform on the agreement and pay the purchase price. Merger agreements typically address this problem through "material adverse change" (MAC) clauses, which provide that a party may walk away from the transaction without penalty if the counterparty has suffered a MAC. Although the definition of MAC is …

Monopoly Pricing On Campus: New York's Textbook Access Act, Gary Minda

Pace Law Review

No abstract provided.

Reverse Auctions And Universal Telecommunications Service: Lessons From Global Experience, Scott Wallsten

Federal Communications Law Journal

The United States now spends around $7 billion on universal service programs-subsidies intended to ensure that the entire country has access to telecommunications services. Most of this money supports telecommunications service in "high cost" (primarily rural) areas, and the High Cost fund is growing quickly. In response to this growth, policymakers are considering using reverse auctions, or bids for the minimum subsidy, as a way to reduce expenditures. While the United States has not yet distributed funds for universal service programs using reverse auctions, the method has been used widely.

First, reverse auctions are akin to standard government procurement procedures, …

A Fundamental Misunderstanding: Fcc Implementation Of U.S. Wto Commitments, Laura B. Sherman

Federal Communications Law Journal

In bilateral and multilateral trade agreements, the United States has agreed to open the market for telecommunications services to foreign service suppliers, an obligation implemented by the FCC since 1998. In contrast, the United States has made no commitments with respect to broadcasting services or broadcast licenses. This article clarifies the different treatment of telecommunications services and broadcast services in U.S. trade obligations and FCC orders.

An Evaluation Of The Proposals In The Fcc's Intercarrier Compensation Reform Docket Related To Tandem Transit Services, John R. Harrington, Ronald W. Gavillet, Matt D. Basil, Melissa L. Dickey

Federal Communications Law Journal

As part of its Intercarrier Compensation Reform Docket, the Federal Communications Commission (FCC) has received many proposals advocating for the adoption of regulations relating to tandem transit services. As transiting affects virtually every carrier in the telecommunications industry, including traditional CLECs, cable telephony providers, wireless carriers, and even traditional ILECs, the industry is sharply divided over which, if any, of those proposals should be adopted. This Article provides an in-depth look at the issues dividing the industry, and the various proposals before the FCC. The Authors then hypothesize that the FCC should follow the lead of several state commissions who …

The Riaa, The Dmca, And The Forgotten Few Webcasters: A Call For Change In Digital Copyright Royalties, Kellen Myers

Federal Communications Law Journal

Emerging webcasting technology is playing an increasing role in modem society. The ease of use of webcast technology has brought about an increased user base as well as an increased viability for small webcasting businesses. However, the mix-tape genre of independent Internet radio has been financially and legislatively abused as a forerunner of rapidly advancing digital technology and concerns over protecting copyright royalties. This Note argues for a revision of the DMCA to provide a middle ground between protecting copyrighted works and allowing the continued existence of Internet radio.

Paying The Price For Sports Tv: Preventing The Strategic Misuse Of The Fcc's Carriage Regulations, David Hutson

Federal Communications Law Journal

Cable companies and sports leagues have embarked upon parallel courses of vertical integration by creating and acquiring interests in cable sports networks. Cable companies carry regional sports networks (RSNs) on basic cable tiers. Some league-owned networks have sought high prices for carriage on basic tiers, causing some cable companies to balk because of the price increase they would have to pass on to consumers. The 1992 Cable Act prohibits cable companies from discriminating in carriage terms between affiliated and nonaffiliated networks. Cable companies that own RSNs are, therefore, left vulnerable to discrimination complaints by league-owned networks. This Note argues that …

Business Solutions To The Alien Ownership Restriction, Greg Snodgrass

Federal Communications Law Journal

The alien ownership restriction on broadcast licenses has had a profound effect on the entertainment industry over the past few decades. While the origins of the restriction were based on national security fears that no longer apply, the restriction is unlikely to be repealed without significant lobbying. Given the unlikelihood of repeal, this Note concludes that entertainment conglomerates should apply a two-pronged approach to overcome the barrier imposed by the ownership restriction. First, conglomerates should build powerful nonbroadcast superstations. Second, conglomerates should push the FCC to gradually loosen its application of the restriction. While this is not a perfect solution, …

Misuse Of The Less Restrictive Alternative Inquiry In Rule Of Reason Analysis, Gabriel A. Feldman

American University Law Review

The rule of reason articulated by the Supreme Court in 1918 in Chicago Board of Trade has long been the target of scorn and ridicule by scholars and judges. The rule, which is used to determine the legality of restraints under Section 1 of the Sherman Act, instructs courts to identify and balance a restraint's competitive effects - restraints that are net procompetitive are legal. Critics argue that the rule is easy to state but impossible to apply, as it asks courts to identify the unidentifiable and balance the unbalanceable. Despite the steady criticism, the rule has remained the exclusive …

Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek

American University Law Review

Courts have developed several non-technical “secondary considerations” to help judges and juries in patent litigation decide whether a patent meets the crucial statutory requirement that a patent be non-obvious. This Article proposes a tenth secondary consideration to help judges and juries: increased market power. If a patent measurably increases its holders’ market power in the market into which it sells products or services, then that increase should weigh in favor of finding the patent non-obvious. Using increased market power incorporates the predictive benefits of several other secondary considerations, while often increasing the accuracy and availability of evidence. It would provide …

Checks And Balances: European Competition Law And The Rule Of Law, Philip Marsden

Loyola Consumer Law Review

No abstract provided.

China's New Anti-Monopoly Law: A Perspective From The United States, Thomas R. Howell, Alan Wm. Wolff, Rachel Howe, Diane Oh

Washington International Law Journal

In August 2007, China enacted an Anti-Monopoly Law, becoming one of roughly ninety nations to establish a comprehensive regulatory regime governing competition. Since the advent of China’s economic reform program beginning three decades ago, China has been moving to integrate its economy within the global trading system. This article provides an overview of China’s Anti-Monopoly Law (“AML”) emphasizing key areas of significant apparent divergence from U.S. antitrust policy. The article addresses the evolution of anti-monopoly policy in China and the United States, observing that, where differences exist, China’s AML frequently reflects principles similar to those once embedded in U.S. antitrust …

"Several Healthy Steps Away": New & Improved Products In Section 337 Investigations, 8 J. Marshall Rev. Intell. Prop. L. 309 (2009), Steven E. Adkins, John Evans

UIC Review of Intellectual Property Law

A business that imports “new and improved,” or redesigned, products into the United States should be aware of the procedures available to lessen the risk of violating standing orders of the United States International Trade Commission (“Commission”). In order to ensure that these products gain entry without violating an ITC order and accruing substantial penalties, it is imperative that the business know its options. Whether it requests a Customs ruling or uses a certification, or whether it petitions for an advisory opinion from the Commission, the business must be able to maneuver. This nuts-and-bolts guide provides examples and information on …

“Pay-For-Delay” Settlements In Pharmaceutical Litigation: Drawing A Fine Line Between Patent Zone And Antitrust Zone, 9 J. Marshall Rev. Intell. Prop. L. 528 (2009), Yuki Onoe

UIC Review of Intellectual Property Law

Congress has identified the recent trend of pharmaceutical companies to settle patent litigation under “pay-for-delay” settlements or reverse payment settlements. Under these agreements, a generic maker receives a payment from a brand-name company in exchange for withdrawing the patent challenge and refraining from entering the market until an agreed date. Most courts have rejected antitrust challenges to this practice in view of exclusive rights of patent holders and general benefits from settlements. As part of the health care reform, Congress now proposes to treat “pay-for-delay” settlements as per se illegal and entirely ban the practice. The proposal, however, limits the …

Antitrust Law - A Stranger In The Wikinomics World? Regulating Anti-Competitive Use Of The Drm/Dmca Regime, 27 J. Marshall J. Computer & Info. L. 1 (2009), Rachel Aridor-Hershkovitz

UIC John Marshall Journal of Information Technology & Privacy Law

Unlike traditional markets, Information Technology (“IT”) markets are characterized by special and unique features that shall be discussed in this paper. Competition in IT markets is dynamic; nonmarket based information production models (‘peer production’) play a significant role in IT markets; and IT market are usually data market rather than product market. The combination of the legal rule prohibiting circumvention of technological measure under the DMCA and the use of DRMs, created a new regime, the DRM/DMCA regime, which bestows the entertainment industry with a new and strong right to control the access to and use of the copyrighted work. …

Why Did Anyone Listen To The Rating Agencies After Enron?, Claire A. Hill

Journal of Business & Technology Law

No abstract provided.

So Now Who Is Special?: Business Model Shifts Among Firms That Borrow To Lend, José Gabilondo

Journal of Business & Technology Law

No abstract provided.

Rating Agencies And Reputational Risk, David Reiss

Journal of Business & Technology Law

No abstract provided.

Cooper V. Mcclure: The Difficulty Of Proving Antitrust Violations And The Need For A False Claims Act, Esther Lee

Journal of Business & Technology Law

No abstract provided.

Securities Law And Antitrust Law: Two Legal Titans Clash Before The United States Supreme Court In Credit Suisse Securities V. Billing, Stacey Sheely Chubbuck

Oklahoma Law Review

No abstract provided.