Law Commons^™

Antitrust Class Actions In The Wake Of Procedural Reform, Christine P. Bartholomew

Indiana Law Journal

What is the current vitality of antitrust enforcement? Antitrust class actions—the primary mode of competition oversight—has weathered two decades of procedural reform. This Article documents the effects of those reforms. Relying on an original dataset of over 1300 antitrust class action settlements, this Article finds such cases alive but far from well. Certain suits do succeed on an impressive scale, returning billions of dollars to victims. But class action reform has made antitrust enforcement narrower, more time-consuming, and costlier than only a decade ago. And, as this Article’s sources reveal, new battle lines are forming. Across the political spectrum, people …

Out Of The Octagon And Into The Courtroom: The Ufc’S Antitrust Lawsuit, John Milas

DePaul Journal of Sports Law

No abstract provided.

Secondary Picketing, Trade Restraints, And The First Amendment: A Historical And Practical Case For Legal Stability

Hofstra Labor & Employment Law Journal

Secondary picketing is picketing by a union aimed at someone other than the employer. It aims to coerce the other person to cut ties with the employer to gain leverage in a labor dispute. Today, secondary picketing is usually illegal; it is an unfair labor practice under section 8(b)(4)(ii)(B) of the National Labor Relations Act. If a union pickets a neutral third party, it can be subject to unfair-labor-practice charges, or even an injunction. This article explores why the Court continues to draw that distinction. It surveys the arguments for liberalizing picketing rules, and it places them in historical context. …

Big Tech Is Why I Have (Anti)Trust Issues, Sophie Copenhaver

St. John's Law Review

(Excerpt)

“There is a cost to bigness, even if it’s not passed onto the consumer.” Antitrust laws were once an effective tool to break up companies that had grown too large. However, subsequent rulings have altered their original meaning, and they are no longer useful in regulating large technology companies such as Amazon, Facebook, and Google. This Note will argue that judicial interpretation of antitrust laws should no longer be governed by the consumer welfare standard. Rather, judges should apply a two-part test, focusing on the market power and any anticompetitive business practices of the defendant corporation.

Privity 2.0 May Be Even Better For Tort Defendants, Anita Bernstein

Florida State University Law Review

No abstract provided.

Privity 2.0 May Be Even Better For Tort Defendants, Anita Bernstein

Florida State University Law Review

No abstract provided.

A New Antitrust Framework To Protect Mom And Pop From Big Tech, Cara Macdonald

Journal of the National Association of Administrative Law Judiciary

While the economy declined during the COVID-19 pandemic, big technology companies like Amazon and Oracle experienced unprecedented growth and influence. Critics argue big technology companies are finding this level of success in-part due to anticompetitive practices. The crux of the debate rests on whether current, traditional antitrust laws are sufficient to cope with big technology companies. Some theorists argue that current laws are adequate, while others assert that antitrust laws are insufficient to regulate big technology companies because they are so different from the types of companies antitrust laws were designed to regulate. This article concludes that big tech companies …

Ftc V. Qualcomm And The Need To Reboot Antitrust Goals, Beatriz Del Chiaro Da Rosa

University of Miami Business Law Review

The antitrust community is facing a demanding question: Is antitrust enforcement ultimately about protecting consumers, competition, or both? This question has sparked debates about the ultimate goals of antitrust law. On one side of the debate, supporters of the consumer welfare standard; and on the other side, supporters of the Neo-Brandeisian standard of enforcement. At this crucial time in the debate of overarching antitrust goals, the Ninth Circuit’s holding in Federal Trade Commission v. Qualcomm Incorporated, one of the most important antitrust cases in the twenty-first century, poses many issues for the consumer welfare standard and antitrust enforcement in the …

Probing For Holes In The 100-Year-Old Baseball Exemption: A New Post-Alston Challenge, Sam C. Ehrlich

University of Cincinnati Law Review

As professional baseball’s unique exemption to antitrust law celebrates its one-hundredth year of existence, it faces a new attack in Nostalgia Partners v. Office of the Commissioner of Baseball, a claim by a group of minor league owners shut out of MLB’s recent restructuring of its minor league affiliate system. While the baseball exemption has weathered dozens of similar challenges over the past century, the Nostalgia Partners plaintiffs claim that circumstances on the Supreme Court have changed enough that the justices would be willing to overturn or narrow the exemption in their favor. This claim rests with the Court’s …

Mergers, Antitrust, And The Interplay Of Entrepreneurial Activity And The Investments That Fund It, Gary Dushnitsky, D. Daniel Sokol

Vanderbilt Journal of Entertainment & Technology Law

This Article addresses the potentially negative implications of proposed antitrust legislation on the entrepreneurial ecosystem in general, with a particular focus on the venture capitalists (VCs) that fund it. First, it offers a review of how antitrust merger law currently works and how proposed legislative changes to antitrust may threaten the innovative Venture Capital (VC)-backed ecosystem that has made the United States the center of global innovation across many different industries. Accompanying this review are some empirical observations. Second, recognizing that the understanding of innovative entrepreneurial activity calls for a deep appreciation of those who back it, the Article also …

Sovereignty 2.0, Anupam Chander, Haochen Sun

Vanderbilt Journal of Transnational Law

Digital sovereignty-the exercise of control over the internet-is the ambition of the world's leaders, from Australia to Zimbabwe, seen as a bulwark against both foreign states and foreign corporations. Governments have resoundingly answered first-generation internet law questions of who, if anyone, should regulate the internet. The answer: they all will. Governments now confront second-generation questions--not whether, but how to regulate the internet. This Article argues that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy's dreaded antagonist. As international law scholar Louis Henkin taught, sovereignty can insulate a government's worst ills from foreign intrusion. Assertions of digital …

Note: Trust In The Digital Marketplace: Amazon, Third-Party Sellers, And Informational Fiduciaries, Jesse-Paul Crane

Notre Dame Journal on Emerging Technologies

The rise of e-commerce has created a number of online marketplaces where digital platforms connect buyers and sellers. Consumers use platforms like Amazon, Etsy, Instacart, Uber, Lyft, and Airbnb to purchase goods and services from third parties while the platform itself takes a fee for operating the marketplace. Online platforms are not the only businesses that use such a “two-sided” marketplace model. The Supreme Court recently addressed antitrust concerns in this type of marketplace in Ohio v. Am. Express Co. 1 Two-sided markets invoke a number of novel legal issues that impact both those who buy and sell over them, …

Anticompetitive Merger Review, Samuel N. Weinstein

Georgia Law Review

U.S. antitrust law empowers enforcers to review pending mergers that might undermine competition. But there is growing evidence that the merger-review regime is failing to perform its core procompetitive function. Industry concentration and the power of dominant firms are increasing across key sectors of the economy. In response, progressive advocates of more aggressive antitrust interventions have critiqued the substantive merger-review standard, arguing that it is too friendly to merging firms. This Article traces the problem to a different source: the merger-review process itself. The growing length of reviews, the competitive restrictions merger agreements place on acquisition targets during review, and …

Governing Fintech 4.0: Bigtech, Platform Finance, And Sustainable Development, Douglas Arner, Ross Buckley, Kuzi Charamba, Artem Sergeev, Dirk Zetzsche

Fordham Journal of Corporate & Financial Law

Over the past 150 years, finance has evolved into one of the world’s most globalized, digitized, and regulated industries. Digitalization has transformed finance, but also enabled new entrants over the past decade in the form of technology companies, especially FinTechs and BigTechs. As a highly digitalized industry, incumbents and new entrants alike are increasingly pursuing similar approaches and models, focusing on the economies of scope and scale typical of finance and the network effects typical of data. Predictably, this has resulted in the emergence of large digital finance platforms. We argue that the combination of digitalization, new entrants (especially BigTechs), …

Returning To The Statutory Text: Why The Language Of Section 13(B) Requires Courts To Narrowly Construe The Ftc’S Ability To Obtain Injunctive Relief, Christopher Halm

Fordham Journal of Corporate & Financial Law

The Federal Trade Commission (FTC) enforces over 70 laws in the areas of antitrust and consumer protection, and one valuable tool to support their enforcement is Section 13(b) of the Federal Trade Commission Act (“Section 13(b)”). Section 13(b), among other features, grants the FTC authority to seek an injunction in district court against any defendant that is “about to violate” one or more of those laws. For the past three decades, courts have adopted a permissive judicial interpretation of that language, authorizing injunctions against defendants when the allegedly impending violations were only “likely to recur” based on past misconduct. This …

Output Effect Of Private Antitrust Enforcement, Sinchit Lai

Fordham Journal of Corporate & Financial Law

A growing body of literature evaluates the impact of antitrust laws on economic growth. Most of these empirical studies identify a positive impact; however, the existing literature only studies the effect of the existence of antitrust laws, but not their enforcement. To fill this gap in the literature, this Article uses private antitrust case filing numbers to examine the growth effect. Employing U.S. data and, after addressing endogeneity, using a two-stage least squares (2SLS) regression analysis, I identify a negative and robust association between private enforcement and output on a national level in the short run over the period from …

Table Of Contents

Seattle University Law Review

Table of Contents

Less Restrictive Alternatives And The Ancillary Restraints Doctrine, Thomas B. Nachbar

Seattle University Law Review

In Ohio v. American Express, both the majority and dissent introduced into Supreme Court antitrust jurisprudence a new test for evaluating restraints under the rule of reason: a less restrictive alternatives test. Occasionally appearing in circuit court cases, less restrictive alternatives tests have not been part of Supreme Court’s approach to the rule of reason, which generally evaluates restraints of trade by balancing their anticompetitive and procompetitive effects.

American Express was the first Supreme Court case to mention a less restrictive alternatives test, potentially representing a major shift in antitrust law, but it was not the last. In 2021’s …

Addressing Big Tech’S Market Power: A Comparative Institutional Approach, Thomas A. Lambert

SMU Law Review

This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union’s Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established “Digital Markets Unit.” After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context …

The Crimes Of Digital Capitalism, Aitor Jiménez, J.C. Oleson

Mitchell Hamline Law Review

No abstract provided.