Anticompetitive Mergers In Labor Markets, 2018 University of Pennsylvania
Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp
Mergers of competitors are conventionally challenged under the federal antitrust laws when they threaten to lessen competition in some product or service market in which the merging firms sell. Mergers can also injure competition in markets where the firms purchase. Although that principle is widely recognized, very few litigated cases have applied merger law to buyers. This article concerns an even more rarefied subset, and one that has barely been mentioned. Nevertheless, its implications are staggering. Some mergers may be unlawful because they injure competition in the labor market by enabling the post-merger firm anticompetitively to suppress wages or salaries ...
Regulating The Ncaa: Making The Calls Under The Sherman Antitrust Act And Title Ix, 2018 University of Maine School of Law
Regulating The Ncaa: Making The Calls Under The Sherman Antitrust Act And Title Ix, Stephanie M. Greene
Maine Law Review
The National Collegiate Athletic Association (NCAA) is a powerful force in shaping the intercollegiate athletic programs of some 1200 public and private colleges. Courts have recognized the NCAA as an entity that serves the important and admirable functions of maintaining the amateur status of intercollegiate athletics and the integrity of the educational process for the student-athlete, while providing a fair and equitable competitive environment. Most of the NCAA's rules and regulations are promulgated to promote and maintain these goals. Nevertheless, both student-athletes and coaches have challenged NCAA rules in the courts, claiming that certain rules discriminate on the basis ...
Whatever Did Happen To The Antitrust Movement?, 2018 University of Pennsylvania Law School
Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp
Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.
In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of ...
The Justice Of Unequal Pay In The Ufc: An In-Depth Analysis Of The Fighters’ Antitrust Class Action Lawsuit Against The Ufc And The Misplaced Support Of The Proposed Muhammad Ali Expansion Act, 2018 Nova Southeastern University
The Justice Of Unequal Pay In The Ufc: An In-Depth Analysis Of The Fighters’ Antitrust Class Action Lawsuit Against The Ufc And The Misplaced Support Of The Proposed Muhammad Ali Expansion Act, Hunter Sundberg
Pace Intellectual Property, Sports & Entertainment Law Forum
In 2016, the Ultimate Fighting Championships (“UFC”) set the record for the largest sale in sports history. The UFC, the primary promotion company of the once fringe sport of mixed martial arts (“MMA”) had matured into a mammoth 4 billion dollar promotion, but not without some growing pains. The league is replete with controversy, mostly dealing with disgruntled athletes over compensation. Athletes of the UFC feel that they are being financially exploited and they may be correct. The athletes are choosing different routes to remedy their pay disparities but they are misguided.
The first course of action chosen by the ...
Prophylactic Merger Policy, 2018 University of Pennsylvania Law School
Prophylactic Merger Policy, Herbert J. Hovenkamp
An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there ...
Progressive Antitrust, 2018 University of Pennsylvania Law School
Progressive Antitrust, Herbert J. Hovenkamp
Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...
Whatever Happened To Quick Look?, 2017 University of Miami Law School
Whatever Happened To Quick Look?, Edward D. Cavanagh
University of Miami Business Law Review
In California Dental Ass’n v. F.T.C. (hereafter “Cal Dental”), the Supreme Court observed that there is no sharp divide separating conduct that can be summarily condemned under section one of the Sherman Act as per se unlawful from conduct that warrants a more searching factual assessment to ascertain any anticompetitive effect and hence its legality. The Court further observed that not every antitrust claim falling outside the narrow ambit of per se illegality warrants the detailed Rule of Reason analysis prescribed in Chicago Board of Trade. The Court thereby eschewed any notion that section one analysis is ...
The Public Interest In Corporate Settlements, 2017 University of Virginia School of Law
The Public Interest In Corporate Settlements, Brandon L. Garrett
Boston College Law Review
Corporate settlements are proliferating in form and function. They include consent decrees, corporate integrity agreements, deferred prosecution agreements, non-prosecution agreements, leniency agreements, and plea bargains. Enforcers at the federal and state level enter an array of administrative, civil, and criminal resolutions of enforcement actions against companies. The reach of these settlements is global, and corporate fines have reached new records, with penalties in the hundreds of billions of dollars affecting entire industries and economies. These settlements have not been studied together as a subject, perhaps because they span very different fields, from antitrust to banking, environmental law, health law, and ...
An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, 2017 University of Pennsylvania Law School
An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo
Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by ...
Horizontal Mergers, Market Structure, And Burdens Of Proof, 2017 University of Pennsylvania Law School
Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro
Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective ...
Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, 2017 University of Maine School of Law
Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh
Maine Law Review
Section 2 of the Sherman Act prohibits monopolization, attempted monopolization and conspiracy to monopolize. The § 2 prohibitions are rooted in concerns "that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone." At the same time, courts have recognized that size alone cannot be the basis of condemnation under § 2, for as Learned Hand observed in Alcoa, "[t]he successful competitor, having been urged to ...
The Actavis Inference: Theory And Practice, 2017 University of California - Berkeley
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts ...
Actavis And Error Costs: A Reply To Critics, 2017 University of California - Berkeley
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...
Activating Actavis, 2017 University of California - Berkeley
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help ...
Fairness Opinions, 2017 Ohio State University - Main Campus
Fairness Opinions, Steven M. Davidoff
Steven Davidoff Solomon
This Article re-examines the fairness opinion, as well as its role and necessity in corporate control transactions. This Article argues that today's fairness opinion regime is deeply flawed and, as a consequence, a fairness opinion has little meaning. The reasons are primarily this: the financial analyses underlying fairness opinions, as currently prepared by investment banks, are prone to excessive subjectivity and are frequently the product of valuation techniques that are not in accord with best practices. These defects are exacerbated by the recurring problem of these same investment banks who are conflicted in their provision of these opinions. Meanwhile ...
A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, 2017 University of Maine School of Law
A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, Kyle R. Friedman
Maine Law Review
In Illinois Tool Works Inc. v. Independent Ink, Inc., an ink manufacturer sought to invalidate patents held by a printing system manufacturer by alleging that the patents resulted in illegal tying and monopolization in violation of Sections 1 and 2 of the Sherman Act. This action was preceded by an infringement action brought by Illinois Tool Works (ITW), which was dismissed for lack of personal jurisdiction. Independent Ink (Independent) responded by seeking a judgment of non-infringement and invalidity of patents against ITW. The district court granted summary judgment in favor of ITW on both counts. The court of appeals reversed ...
Uber, Lyft, And Regulating The Sharing Economy, 2017 Seattle University School of Law
Uber, Lyft, And Regulating The Sharing Economy, Brett Harris
Seattle University Law Review
The “sharing economy” goes by many names such as the “gig economy,” the “1099 economy,” and the “on-demand economy,” all of which describe the economic system that uses online platforms to connect workers and sellers with clients and consumers, primarily through smartphone applications. Many of the sharing economy companies are also called the “tech disruptors.” They earned this title because they have changed the way that people do business. But in changing the way that people do business, they have also created unique regulatory challenges for governments across the country. The news is rife with stories about when these regulations ...
A Critical Discourse Analysis Of The Intellectual Property Chapter Of The Tpp: Confirming What The Critics Fear, Karyn Hollis
A host of organizations and citizens groups have convincingly pointed out that so called “Free Trade Agreements” have done more harm than good to the U.S. and other countries involved. Thanks to their protests, for the moment, the most ambitious multinational, neoliberal project of our young century, the Trans-Pacific Partnership (TPP), has been defeated. If the agreement had been adopted, the TPP would have shaped new rules of trade for over 8 million people, spanning 40% of the global economy. Using Critical Discourse Analysis (CDA), my study shows how the complex language of the actual treaty compared to its ...
Antitrust Policy And Inequality Of Wealth, 2017 University of Pennsylvania Law School
Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp
Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new ...
Horizontal Shareholding And Antitrust Policy, 2017 Yale University
Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp
“Horizontal shareholding” occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market output in the product market is lower and prices higher than they would otherwise be.
Here we consider how the antitrust laws might be applied to this practice, identifying the issues that courts are likely to encounter and attempting to anticipate litigation problems. We assume that neither the mutual ...