Antitrust and Trade Regulation Commons^™

A Comment On Markovits's Welfare Economics And Antitrust, Keith N. Hylton

Faculty Scholarship

I criticize two features of the new book by Richard Markovits. One is the notion that ethics or moral judgments should be part of our analysis of antitrust. The other is the notion that market definition is incoherent.

Antitrust Interoperability Remedies, Herbert J. Hovenkamp

Faculty Scholarship at Penn Carey Law

Compelled interoperability can be a useful remedy for dominant firms, including large digital platforms, who violate the antitrust laws. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.

Given the wide variety of structures and business models for big tech, “interoperability” must be defined broadly. It can realistically include everything from “dynamic” interoperability that requires real time sharing of data and operations, to “static” interoperability which requires portability but not necessarily real time interactions. Also included are the compelled sharing of intellectual property or …

Running A Different Route: How Youtube Tv Plans To Avoid Antitrust Violations, Brody Shea

SLU Law Journal Online

After reaching a deal this past December, YouTube TV is now the sole option for NFL Sunday Ticket subscribers. By providing out-of-market sports games in a bundled package, YouTube TV runs the risk of violating the Sherman Antitrust Act. In this article, Brody Shea addresses how YouTube TV can avoid future litigation.

Epic Games, Inc. V. Apple, Inc.: An Epic Opinion For Software Developers, Gabriella Veronica Coffield

University of Miami Business Law Review

Aside from Google Play, Apple’s App Store is where the majority of apps are downloaded from across the world. Recently, Apple has faced scrutiny for its management of the App Store and the control Apple has over the market due to the lack of competition. Additionally, developers have criticized the 30% fee Apple charges them for in-app purchases. The recent ruling by the Northern District of California in Epic Games, Inc. v. Apple, Inc., 559 F. Supp. 3d 898 (N.D. Cal. 2021) addressed this issue and issued an injunction allowing the possibility for developers to direct consumers to external links …

Now Streaming: How Streaming Services Are Following In The Antitrust Footsteps Of Hollywood’S Golden Age, Megan Elizabeth Norris

University of Miami Business Law Review

The entertainment industry is undergoing quite the transformation following the recent termination of the Paramount Consent Decrees, which effectively regulated the industry to prevent monopolization and promote competition for almost a century. The industry now faces a drastic surge in the utilization of streaming services and a new wave of antitrust issues.

“With great power comes great responsibility;” however, the dominant streaming companies in the industry have raised suspicion about emerging anticompetitive concerns. While long overdue, the termination of the Paramount Consent Decrees leaves a gaping hole in antitrust policy regarding the nuanced business practice of streaming platforms. Existing antitrust …

Anticompetitive Corporate Spin-Offs, Alexa Rosen Grealis

University of Miami Business Law Review

Section 355 of the Internal Revenue Code allows corporations to “spin-off” parent-controlled businesses tax-free. Traditionally an important tool for divestitures and restructurings with U.S. tax consequences, recent trends suggest section 355 is also of interest to firms facing US antitrust consequences. Statements and maneuvering by some such companies indicate firms are considering spinning-off businesses to avert liability and ‘break up’ on their own terms. Despite widespread renewed interest in using antitrust laws to break up large corporations, the antitrust implications of corporate spin-offs have thus far escaped scholarly notice and scrutiny.

This Note posits that it is a mistake to …

Hospital Mergers: The Symptoms Of Anticompetitive Consolidation & A Routine Checkup On The Horizontal Merger Guidelines, Stefan Rao Kostas

University of Miami Business Law Review

In 2021, President Biden issued an executive order that addressed the negative implications of market concentration within the healthcare industry. Specifically, President Biden called for the revision of the Horizontal and Vertical Merger Guidelines to enact antitrust safeguards that limit unchecked hospital mergers and promote competition. This Article delves into the role of the healthcare sector in the U.S. economy and how the current state of hospital mergers limits competition and, thus, the quality of care available to patients. Further, this Article studies U.S. federal regulations, case law, and merger retrospectives to uncover pitfalls within the current Horizontal Merger Guidelines. …

In Support Of Ureaa: The Case For Timely, Uniform, And Comprehensive Action Against Restrictive Employment Agreements, Ryan Greenberg

University of Miami Business Law Review

Tens of millions of American workers across a range of occupations are bound by restrictive employment agreements. The COVID-19 pandemic has caused people to leave their jobs in search of more money, flexibility, and happiness—deemed the Great Resignation—shining a new light on the volatility of labor markets. But restrictive employment agreements limit workers’ exit options and stymie competition, in tension with our nation’s antitrust laws. The effects of these agreements are particularly damaging to low-wage workers. Rightfully so, policymakers across jurisdictions and political ideologies are increasingly introducing measures to curtail the abuse of these agreements. This area of the law …

The Antitrust Alternative: Promoting Public Health Through Competition, Michael Cederblom

Indiana Journal of Law and Social Equality

No abstract provided.

Stakeholderism Silo Busting, Aneil Kovvali

Articles by Maurer Faculty

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. Studying these debates together …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Increasing Competition In Live Music: The Case For Better Enforcement Of The Live Nation Entertainment Consent Decree, Tj Hunt

Cleveland State Law Review

In 2009, Live Nation and Ticketmaster Entertainment expressed their intent to merge to become Live Nation Entertainment. Before the merger, Ticketmaster Entertainment was the leading live music ticketing and marketing company. Live Nation was the leading producer of live music events. Live Nation also entered the primary ticket sales market and led merchandising at its entertainment venues. Antitrust concerns arose that this newly formed entity would be a near-monopoly in live music. Despite general antitrust concerns and lawsuits from consumers, smaller promoters, seventeen state attorneys general, and the Department of Justice (“DOJ"), Live Nation Entertainment agreed to a consent decree …

Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale

Georgetown Law Faculty Publications and Other Works

Merging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses …

The Constitutional Moment That Wasn't: 1912-1914 And The Meaning Of The Sherman Act, Alan J. Meese

Popular Media

No abstract provided.

The Paradox Of Plenty: Why Guyana’S Local Content Law Needs A Reality Check, Vivian M. Williams

Publications and Research

The effectiveness of coercive local content requirements to the development of resource rich developing countries is an area attracting increasing global attention. Local content requirements are especially popular in the extractive sector though empirical studies show that they do not fulfill their intended purpose. Now recognized as the world's fastest growing economy after becoming an oil producing country, Guyana has passed a local content law. The real concern is not merely whether local content requirements fail to fulfill their objectives but whether they create market distortions that lead to the resource curse. This issue was addressed by Baruch's Adjunct Assistant …

The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna

Washington Law Review

The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions …

Merger Enforcement Statistics: 2001-2020, Logan Billman, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article summarizes merger enforcement data for the period between 2001 and 2020, using a database created by the authors. The database lists the identity and outcome of every transaction that received a second request during this 20-year period. The database also lists the identity and outcome of every challenge to an already-consummated merger during the period. To our knowledge, it is the only complete database for the listing and outcomes of all such transactions. The goal of creating the database is to provide further information on merger enforcement, which hopefully can inform policy and spur additional analysis. We describe …

Against Secondary Meaning, Jeanne C. Fromer

Notre Dame Law Review

Trademark law premises protection and scope of marks on secondary meaning, which is established when a mark develops sufficient association to consumers with a business as a source of goods or services in addition to the mark’s linguistic primary meaning. In recent years, scholars have proposed that secondary meaning plays an even more central role in trademark law than it already does. Yet enshrining secondary meaning in the law undermines the ultimate goals of trademark law: promoting fair competition and protecting consumers. The dangers of enshrining secondary meaning include the problematic doctrine that has built up to assess it or …

The Future Of College Sports After Alston: Reforming The Ncaa Via Conditional Antitrust Immunity, Nathaniel Grow

William & Mary Law Review

In June 2021, a unanimous U.S. Supreme Court issued its eagerly anticipated decision in National Collegiate Athletic Association v. Alston, ruling for the first time that NCAA rules governing student-athlete eligibility are subject to full scrutiny under federal antitrust law. Although the immediate impact of the Alston decision was rather modest—merely requiring the NCAA to allow its schools to compete by offering prospective players education-related benefits such as laptop computers and stipends for future graduate-level study—the Court hinted that it was prepared to extend the logic of this ruling much further, calling into question the legality of the NCAA’s …

Providing Farmers With The Legal Tools Needed To Keep The Equipment Running: An Update On The Agricultural Right To Repair Movement, Greg Nies, Bruce Elder

Mountain Plains Business Conference

This presentation examines and summarizes the right to repair movement from the perspective of its origins, development, legal basis and – most significantly – its unique manifestation within an agriculture perspective. The agricultural equipment sector is more concentrated and less competitive than many other industries, while the typical farmer remains fiercely independent and self-reliant. This unique situation has led to conflict, forming the basis of the current agricultural right to repair dispute. Accordingly, the current state of the agricultural right to repair movement is examined and explained based on the recent policy, legislation, and litigation efforts employed at federal and …