Law Commons^™

“I’Ll Know It When I See It”: Defending The Consumer Financial Protection Bureau’S Approach Of Interpreting The Scope Of Unfair, Deceptive, Or Abusive Acts Or Practices (“Udapp”) Through Enforcement Actions, Stephen J. Canzona

Journal of Legislation

No abstract provided.

Worker Collective Action In The Time Of Fissuring: Independent Contractor Labor Boycotts, The Thirteenth Amendment, And Antitrust Law, Richard Blum

Nevada Law Journal

No abstract provided.

Anticompetitive Manipulation Of Rems: A New Exception To Antitrust Refusal-To-Deal Doctrine, Tyler A. Garrett

William & Mary Law Review

No abstract provided.

How Google Perceives Customer Privacy, Cyber, E-Commerce, Political And Regulatory Compliance Risks, Lawrence J. Trautman

William & Mary Business Law Review

By now, almost every business has an Internet presence. What are the major risks perceived by those engaged in the universe of Internet businesses? What potential risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise?

This Article discusses the relevant annual report disclosures from Alphabet, Inc. (parent of Google), along with other Google documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from Alphabet’s (Google) regulatory filings. My additions about these entities include weaving their disclosure materials into a logical presentation …

The Duality Of Provider And Payer In The Current Healthcare Landscape And Related Antitrust Implications, Julia Kapchinskiy

San Diego Law Review

Health care landscape has changed with the introduction of the ACA and will keep changing due to the proposed repeal. The only constant is the desire of health plans and providers to maximize profits and minimize costs, which is attainable through consolidation. This Comment advocates a revision of the existing antitrust guidelines that would (1) recognize unique nature of health care market, (2) be independent from the current or proposed legislation to the maximum possible extent, and (3) reflect the insurer-provider duality, which heavily influences the quality and accessibility of the healthcare for the consumer.

Hindsight Bias In Antitrust Law, Christopher R. Leslie

Vanderbilt Law Review

The modern field of study into hindsight bias was launched by Baruch Fischhoff. Fischhoff provided his research subjects with a primer on the 1810s conflict between British forces and Nepalese Gurkhas near Northern India. He suggested four possible outcomes: British victory, Gurkha victory, a peace settlement, and a military stalemate with no peace settlement. The subjects were then divided into five groups. One group was given no information about the ultimate outcome of the conflict. Subjects in each of the remaining four groups were told that one of the four outcomes had, in fact, occurred. The subjects were then asked …

An Antitrust Approach To Corporate Free Exercise Claims, Ronald J. Colombo

St. John's Law Review

(Excerpt)

This Article suggests that antitrust law’s concept of market power could similarly be employed in balancing the free exercise rights of a corporation or any for-profit business venture against the rights of individuals. When a business enterprise seeks a religious liberty exemption from a rights-granting law, a major factor in assessing its claim should be the degree to which it wields market power in the relevant market. If the business is a monopolist, and, a fortiori, wielding tremendous market power, its claim for a free exercise exemption should probably fail. If, conversely, the business is but a minor marketplace …

Update On Antitrust And Pay-For-Delay: Evaluating “No Authorized Generic” And “Exclusive License” Provisions In Hatch-Waxman Settlements, Saami Zain

San Diego Law Review

In Federal Trade Commission v. Actavis, the United States Supreme Court held that a patent litigation settlement where a branded drug company pays a generic drug company to end the litigation and delay launching its generic may violate the antitrust laws. Although the decision ended years of controversy over whether such settlements were subject to antitrust scrutiny, many issues remain unresolved concerning the lawfulness of these settlements. In particular, courts have struggled in assessing the legality of patent settlements between branded and generic drug manufacturers involving non-cash compensation or benefits. This article discusses one type of non-cash compensation that is …

Looking For Venue In The Patently Right Places: A Parallel Study Of The Venue Act And Venue In Anda Litigation, Mengke Xing

San Diego Law Review

Like any other type of litigation, venue is often an important strategic decision for patent infringement litigants. Under the traditional nation-wide venue rule, a patent owner was able to sue a corporate defendant almost in every district in the country, giving rise to abusive forum shopping and the popularity of the Eastern District of Texas. Last year, the Supreme Court in TC Heartland dramatically changed the legal framework of venue in patent litigation, while leaving some issues unaddressed. After a discussion of the evolvement of venue laws and the significance of TC Heartland, this Comment focuses on the Venue Equity …

Million Dollar Babies Do Not Want To Share: An Analysis Of Antitrust Issues Surrounding Boxing And Mixed Martial Arts And Ways To Improve Combat Sports, Daniel L. Maschi

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Mls Promotion! Can Mls's Single Entity Status Protect It From "Pro/Rel"?, Brendan H. Ewing

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Antitrust And The Design Of Production, Herbert Hovenkamp

Cornell Law Review

No abstract provided.

Agribusiness And Antitrust: The Bayer-Monsanto Merger, Its Legality, And Its Effect On The United States And European Union, Aleah Douglas

Global Business Law Review

This note examines the current and historical antitrust laws of the United States and the European Union as they relate to the currently pending merger between Bayer and Monsanto. It focuses alternatively on the legality of the merger under modern antitrust laws and the impact such a deal could have on the agribusiness industry in both Europe and the United States. Ultimately, the note argues that the Bayer-Monsanto merger is illegal and should be blocked by the proper authorities in the United States and the European Union.

Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson

Washington Law Review

Information is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents. Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, …

Talent Can't Be Allocated: A Labor Economics Justification For No-Poaching Agreement Criminality In Antitrust Regulation, Rochella T. Davis

Brooklyn Journal of Corporate, Financial & Commercial Law

As of late, labor markets have been a focus point in antitrust enforcement. In 2016 the Department of Justice (DOJ) announced an unprecedented policy to pursue no-poaching agreements criminally. More recently, in January 2018, the DOJ’s Attorney General indicated that the agency is following through on the policy. This Article argues that the DOJ’s new policy is logical and prudent because the economic effects that no-poaching agreements have on labor markets mirror the anticompetitive effects of customer allocation agreements. It also shows that the policy is well-supported by labor economics and antitrust policies. In efforts to comply with the DOJ’s …

Trading Goods For Bad: Is Public Policy Undermined By Investor State Dispute Mechanisms?, Michelle C. Perez

University of Miami Inter-American Law Review

No abstract provided.

How Meyer V. Uber Could Demonstrate That Uber And The Sharing Economy Fit Into Antitrust Law, Nicholas Andrew Passaro

Michigan Business & Entrepreneurial Law Review

Recently, Uber driver (and former Uber CEO) Travis Kalanick has been sued under antitrust laws. The plaintiffs argue that Mr. Kalanick and the other Uber drivers have engaged in a price fixing arrangement that violates §1 of the Sherman Act. The case, Meyer v. Uber (originally Meyer v. Kalanick), is still being litigated. This Comment will analyze each side’s potential arguments and will ultimately conclude that the court should find Uber drivers not guilty of a Sherman Act violation. This determination will be based on: the merits of the various arguments, how such a holding would fit within the …

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …

Keynote Address To The Atlas Conference: “International Business Disputes In An Era Of Receding Globalism”, Lord Peter H. Goldsmith Qc, Pc

Georgia State University Law Review

This is a transcript of the luncheon keynote address by Lord Peter Goldsmith at the Sixth Annual Conference of the Atlanta International Arbitration Society (AtlAS) on October 23, 2017.

Lord Peter Goldsmith QC, PC, is London Co-Managing Partner and Chair of European and Asian Litigation at Debevoise & Plimpton LLP. He joined the firm after serving as the UK’s Attorney General from 2001-2007, prior to which he was in private practice as one of the leading barristers in London.

Lord Goldsmith has a long practice in arbitration and in the interface between arbitration and litigation. He appears as counsel for …

Legal Issues Surroundings Airline Alliances And Code-Share Arrangements: Insights For The Indonesian And Airline Industry, Ridha Aditya Nugraha

Indonesia Law Review

Following the liberalization of the aviation industry, airlines have been searching for the right business model for their expansion. Today the business concept of the airline alliance is deemed as the correct answer, as many big airlines have joined to secure their business. Code-share arrangements could be seen as the perfect implementation of an airline alliance. Alliances are more flexible than cross-border mergers and takeovers due to national restrictions, making it legally viable and thus a preference. However, code-share arrangements have further legal implications that have led into classification of carriers and ended up a liability issue. There are several …

Market Power And American Express, John B. Kirkwood

University of Miami Business Law Review

The Second Circuit ruled that American Express did not have market power because it operated in a two-sided market and any leverage it exercised over merchants derived from its successful competition for cardholders. As a result, the relevant market had to include both sides of a credit card transaction, the company’s market share was modest, and it could not exploit both merchants and cardholders. In Market Power and Antitrust Enforcement (forthcoming in B.U. L. REV.), I propose a new approach that infers market power from the likely effects of the challenged conduct. This approach shows that American Express clearly exercised …

Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee

University of Miami Business Law Review

In recent years, the federal courts’ analysis of the competitive effects of conduct challenged under the Sherman Act’s rule of reason, which generally includes market definition as a critical step, has been properly guided by sensitivity to business reality and sound economic analysis of the conduct at issue. When it comes to two–sided platforms, the courts should adhere to that same flexible but principled approach and avoid rigid alternatives that would apply regardless of the platform, conduct, or fact–pattern.

In Ohio v. American Express Co., (Case No. 16–1454), now before the U.S. Supreme Court, the U.S. Department of Justice …

Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro

University of Miami Business Law Review

The Department of Justice’s theory of liability in its case attacking the non–discrimination provisions in American Express’s merchant contracts contends that point–of–sale competition on the price of making a purchase with a credit card is an instrument creating economic efficiency. That is, the economy would run more efficiently, and consumers would be better off, if merchants were free to charge variable prices for different types of credit cards. After all, charging different prices for using different types of payment mechanisms appears to be just another form of presumptively positive price competition.

The Second Circuit rejected that conclusion, recognizing that in …

An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke

Cleveland State Law Review

The balance between incentivizing innovation through exclusivity protection and maintaining competitive market conditions—including prices for consumers—is a difficult line to toe. Product hopping has characteristics that constitute a violation of the Sherman Antitrust Act because companies can maintain monopoly power in the pharmaceutical market. While some monopoly power is justified as an incentive for incredibly costly innovation, extended periods of exclusivity harms consumers by keeping prescription drug prices artificially inflated. Allowing generic drug manufacturers to compete sooner in the prescription drug market by disallowing product hopping by name-brand pharmaceutical drug companies will aid in driving down prices. Courts should adopt …

Healthcare Mergers And Acquisitions In An Era Of Consolidation: A Review And A Call For Agency Collaboration In Antitrust Enforcement, Anna Molinari

Pepperdine Law Review

Healthcare companies are consolidating at an alarming rate. From hospitals, to providers’ offices, to insurance companies, there are increasingly fewer consumer choices and more monopolies, which calls for heightened antitrust enforcement. Interestingly, antitrust enforcement authority in the healthcare industry is shared between the Federal Trade Commission (FTC), which presides over hospital and provider mergers, and the Department of Justice (DOJ), which presides over health insurance mergers. Although the FTC has challenged many hospital and provider mergers, the DOJ has only challenged six health insurance mergers. Furthermore, last year, the DOJ ultimately approved all health insurance mergers. In 2017, in United …

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 of …

Worth The Click: Why Greater Ftc Enforcement Is Needed To Curtail Deceptive Practices In Influencer Marketing, Laura E. Bladow

William & Mary Law Review

No abstract provided.

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 …

Extraterritoriality Of Antitrust Law: Applying The Supreme Court's Analysis In Rjr Nabisco To Foreign Component Cartels, Megan L. Masingill

American University Law Review

No abstract provided.

Sec Regulation Of Foreign-Domiciled Investment Advisers: A Study Of The Policy Vision Inspiring The Unibanco Letter, John H. Walsh

American University Business Law Review

No abstract provided.