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2003

Antitrust and Trade Regulation

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Articles 1 - 30 of 45

Full-Text Articles in Law

Antitrust And Trade Regulation Bulletin Ftc Releases Report On Intellectual Property And Antitrust, James Burling, John C. Christie Jr., Michelle Miller Dec 2003

Antitrust And Trade Regulation Bulletin Ftc Releases Report On Intellectual Property And Antitrust, James Burling, John C. Christie Jr., Michelle Miller

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Last year the FTC and the Department of Justice jointly held hearings focused on the current balance of competition and patent law and policy. (See our December, 2001 Antitrust and Trade Regulation Bulletin at www.haledorr.com/antitrust.) The hearings spanned more than 24 days, involving more than 300 panelists and 100 separate written submissions. The first tangible by-product of those sessions came on October 28, 2003, with the release of a 266-page FTC report containing specific recommendations for changes in the existing patent system (the Patent Report)(http://www.ftc.gov/opa/2003/10/creport .htm). A second, joint ...


The Summary Judgment Standard And Pleading Requirements For Conspiracy Claims Relying On The Doctrine Of Conscious Parallelism, Robert Bell, Lee Greenfield, Veronica Kanye, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth Dec 2003

The Summary Judgment Standard And Pleading Requirements For Conspiracy Claims Relying On The Doctrine Of Conscious Parallelism, Robert Bell, Lee Greenfield, Veronica Kanye, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Last spring there was growing concern in the wake of the Seventh Circuit’s decision in In re High Fruc-tose Corn Syrup1 that the courts might be adopting a more receptive attitude toward antitrust claims based on allegations of consciously parallel pricing and other behavior in highly concentrated industries. Three decisions in the last few months suggest that High Fructose Corn Syrup may remain an aberration and that most courts remain deeply skeptical of claims that seek to infer agreement from consciously parallel conduct without any hard evidence of conspiracy. Two of these three decisions, Williamson Oil Co., Inc. v ...


The Merger Of Guidelines And The Integration Of Efficiencies Into Antitrust Review Of Horizontal Mergers, William Kolasky, Andrew Dick Oct 2003

The Merger Of Guidelines And The Integration Of Efficiencies Into Antitrust Review Of Horizontal Mergers, William Kolasky, Andrew Dick

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

There is a widening consensus among jurisdictions with competition laws that “the basic objective of competition policy is to protect competition as the most appropriate means of ensuring the efficient allocation of resources—and thus efficientmarket outcomes—in free market economies.” 1 As this statement indicates, it is efficiency, not competition, that is the ultimate goal of the antitrust laws. One of the senior economists of the Justice Department’s Antitrust Division put it very well recently: “efficiency is the goal, competition is the process.”2 When the competitive process is allowed to run its course—unfettered by exclusionary practices ...


Roundtable With Former Directors Of The Bureau Of Economics, Jonathan Baker Sep 2003

Roundtable With Former Directors Of The Bureau Of Economics, Jonathan Baker

Presentations

The roundtable commemorates the 100th anniversary of the FTC's predecessor agency, the Bureau of Corporations. It was sponsored by the FTC's Bureau of Economics (BE) and focused on BE history and contributions of BE and economic analysis to antitrust and consumer protection enforcement, and to research and economic knowledge and policy. BE was featured because the original functions of the Bureau of Corporations were to collect information, to conduct industry and policy research, to prepare reports at the request of the Congress and the President. The panelists for the roundtable consisted of former BE Directors and Acting Directors ...


State Aid And The Financing Of Public Services: A Comment On The Altmark Judgment Of The Court Of Justice, Frederic Louis, Anne Vallery Sep 2003

State Aid And The Financing Of Public Services: A Comment On The Altmark Judgment Of The Court Of Justice, Frederic Louis, Anne Vallery

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 24 July 2003, the European Court of Justice handed down its judgment in the Altmark case, ending the controversy surrounding the application of the EC state aid control regime to compensation granted to undertakings in consideration for public service obligations imposed on them.


Antitrust And Competition Law Update: Busy Times For U.S. Antitrust Enforcement, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth Aug 2003

Antitrust And Competition Law Update: Busy Times For U.S. Antitrust Enforcement, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The last several weeks have seen a flurry of important developments in antitrust enforcement, with major decisions in one merger and one joint venture case, an important Federal Trade Commission policy statement about disgorgement and restitution remedies, and an announced FTC challenge to a consummated merger. Each of these developments is significant standing alone; collectively, they reflect extremely active Justice Department and FTC antitrust enforcement programs, with the agencies at times adopting more aggressive positions than some might have expected from a Republican administration.


United States V. Amr Corp.: Non-Traditional Cost Measures And Expanding Predatory Pricing Exposure, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth Jul 2003

United States V. Amr Corp.: Non-Traditional Cost Measures And Expanding Predatory Pricing Exposure, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Historically, industries with low average variable costs (AVC) have been as a practical matter largely immune from predatory pricing claims. The reason is simple. Predatory pricing claims require the plaintiff to establish, among other things, that the defendant priced below an appropriate measure of cost. Because marginal costs are notoriously difficult to measure, courts have commonly compared the defendant’s prices to AVC (total costs that vary with output/units of output). Consequently, in industries where average variable costs are very low, plaintiffs are unlikely to be able to prove that defendants have priced below AVC, even when defendants have ...


Thurman Arnold's International Antitrust Legacy, William H. Page Jul 2003

Thurman Arnold's International Antitrust Legacy, William H. Page

UF Law Faculty Publications

In the decades before the World War II, a new economic philosophy favoring cooperation among competitors challenged the competitive model embodied in the antitrust laws. In the United States, the cooperative model had some successes in, for example, the Webb Pomerene Act of 1918, the associational activities of the 1920s, and the NRA codes of the 1930s. And, of course, antitrust law itself, after some false starts, came to recognize that some forms of cooperation are necessary for efficient production. Outside the United States, however, especially in the economic turbulence following World War I, policymakers adopted such an extreme form ...


State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page Jul 2003

State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page

UF Law Faculty Publications

Antitrust observers are familiar with the two-part Midcal test for the immunity of state regulation from federal antitrust laws: the state must clearly articulate its policy to displace competition and must "actively supervise" any private conduct pursuant to the policy. But state action need not meet these requirements if it is "unilateral" and therefore does not conflict with Section 1. Only if a state-authorized restraint is "hybrid," combining state and private action in a way that resembles aprohibited agreement, need the restraint satisfy Midcal.

In this article, John Lopatka and Bill Page examine the history andcurrent importance of the distinction ...


Ub Viewpoint – Aol/Microsoft Settlement Could Harm Consumers, Robert H. Lande Jun 2003

Ub Viewpoint – Aol/Microsoft Settlement Could Harm Consumers, Robert H. Lande

All Faculty Scholarship

No abstract provided.


Most Favored Nation Clauses, Jonathan Baker, William Kopit, Thomas Overstreet, Robert Mcnair, Jr., Steven Snow May 2003

Most Favored Nation Clauses, Jonathan Baker, William Kopit, Thomas Overstreet, Robert Mcnair, Jr., Steven Snow

Presentations

Event descriptionThe Federal Trade Commission and Department of Justice will commence public hearings in Washington, D.C. on February 26, 2003 on the implications of competition law and policy for health care financing and delivery. The hearings will broadly consider the impact of competition law and policy on the cost, quality, and availability of health care, and the incentives for innovation in the field.Specific subjects to be considered include hospital mergers, the significance of non-profit status, vertical integration, quality and efficiencies, the boundaries of the state action and Noerr-Pennington doctrines, monopsony power, the adequacy of existing remedies for anticompetitive ...


The European Union’S Microsoft Case: No Time For Jingoism, Albert A. Foer, Robert H. Lande Apr 2003

The European Union’S Microsoft Case: No Time For Jingoism, Albert A. Foer, Robert H. Lande

All Faculty Scholarship

No abstract provided.


Ub Viewpoint – Media Mergers, Antitrust Law And Consumer Choice, Robert H. Lande Mar 2003

Ub Viewpoint – Media Mergers, Antitrust Law And Consumer Choice, Robert H. Lande

All Faculty Scholarship

No abstract provided.


Price Theory, Competition, And The Rule Of Reason, Alan J. Meese Jan 2003

Price Theory, Competition, And The Rule Of Reason, Alan J. Meese

Faculty Publications

Challenging traditional antitrust jurisprudence, Professor Alan J. Meese argues that the present structure of Rule of Reason analysis, applied pursuant to Standard Oil v. United States, has become outdated. The Rule of Reason as currently applied by the courts rests upon neoclassical price theory, an economic paradigm that assumes that legitimate competition consists of unbridled technological rivalry, unconstrained by nonstandard contracts. Recently, however, the Supreme Court has begun to apply a competing paradigm- Transaction Cost Economics-when determining whether a contract is unreasonable "per se" or instead deserving of Rule of Reason scrutiny. Professor Meese argues that Transaction Cost Economics more ...


"Wto-Plus" Obligations And Their Implications For The Wto Legal System: An Appraisal Of The China Accession Protocol, Julia Ya Qin Jan 2003

"Wto-Plus" Obligations And Their Implications For The Wto Legal System: An Appraisal Of The China Accession Protocol, Julia Ya Qin

Law Faculty Research Publications

No abstract provided.


Raising Rivals' Costs: Can The Agencies Do More Good Than Harm?, Alan J. Meese Jan 2003

Raising Rivals' Costs: Can The Agencies Do More Good Than Harm?, Alan J. Meese

Faculty Publications

No abstract provided.


The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii Jan 2003

The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii

Faculty Publications

The discussion in this Article is divided into four parts. Part I summarizes the landscape, past and present, with respect to insurer collaboration in underwriting. Part II considers whether, absent an antitrust exemption, multiinsurer agreements and collaborative insurer standard-setting with respect to underwriting violate federal antitrust law. This Part also evaluates whether insurers, to the extent potential federal liability exists, enjoy any kind of statutory or judicial exemption from federal law for such activities. Part III considers the same questions addressed in Part II but in the context of state antitrust laws. Because antitrust law, including the law of antitrust ...


The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii Jan 2003

The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii

UF Law Faculty Publications

Whenever two or more market participants collaborate to restrain trade, the potential applicability of federal and state antitrust laws must be considered. When the collaborating parties are insurance companies, a further layer of analysis may be necessary to determine whether the activity is exempt from federal antitrust regulation. Even if the activity enjoys an exemption, state antitrust law may have different things to say about the activity. Embedded in each of these levels of analysis are many difficult and complex subsidiary questions. In short, the law of insurance antitrust is not a subject for the faint of heart.

Antitrust law ...


The European Commission's Ge/Honeywell Decision: U.S. Responses And Their Implications, David J. Gerber Jan 2003

The European Commission's Ge/Honeywell Decision: U.S. Responses And Their Implications, David J. Gerber

All Faculty Scholarship

No abstract provided.


Legal Services And The Doha Round Dilemma, Sydney M. Cone Iii. Jan 2003

Legal Services And The Doha Round Dilemma, Sydney M. Cone Iii.

Articles & Chapters

This article examines the nexus between two international topics, namely, trade negotiations, and regulation of the cross-border practice of law. Admittedly, this nexus is not found at a conventional crossroads. Legal services lie somewhat at the periphery of international trade measured in terms of the global value of goods, services and investment used to define major international economic relationships, or to define priorities in the formulation of national and transnational economic policies. Moreover, trade negotiators hardly figure amongst the principal regulators having responsibility for the professional conduct of individuals and firms engaged in the practice of law.

Notwithstanding the somewhat ...


Illustrating A Behaviorally Informed Approach To Antitrust Law: The Case Of Predatory Pricing, Avishalom Tor Jan 2003

Illustrating A Behaviorally Informed Approach To Antitrust Law: The Case Of Predatory Pricing, Avishalom Tor

Journal Articles

One of the core assumptions of the traditional economic approach to antitrust law is that competitors are perfectly rational, profit-maximizing, decision makers. Sometimes, this assumption serves as a useful simplification of business behavior, providing an effective foundation for antitrust doctrine. At other times, however, assuming strictly rational behavior on the part of competitors is not “approximately right” but, instead, “perfectly wrong.” In these latter cases, the reliance on the perfect rationality assumption can lead scholars to mispredict market behavior and, possibly, advocate erroneous prescriptions for antitrust policy. In contrast, a behaviorally informed approach to antitrust law is based on scientific ...


Icann And Antitrust, A. Michael Froomkin Jan 2003

Icann And Antitrust, A. Michael Froomkin

Articles

National identification ("ID") cards appear increasingly inevitable. National ID cards have the potential to be repressive and privacy destroying, but it is also possible to design a system that captures more benefits than costs. Because the United States currently lacks a single, reliable credential, private businesses have trouble authenticating their customers and matching data among distributed databases. This Article argues that the desire for reliable ID creates a window of opportunity for the federal government to strike a bargain: offer private businesses the use of a reliable credential in the form of a national ID card, on the condition that ...


Economists' Roundtable, Jonathan Baker, Philip Nelson, Janusz Ordover, Dennis Carlton Jan 2003

Economists' Roundtable, Jonathan Baker, Philip Nelson, Janusz Ordover, Dennis Carlton

Presentations

Moderator for the Economists' Roundtable


Why Did The Antitrust Agencies Embrace Unilateral Effects, Jonathan Baker Jan 2003

Why Did The Antitrust Agencies Embrace Unilateral Effects, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Competitive Price Discrimination: The Exercise Of Market Power Without Anticompetitive Effects (Comment On Klein And Wiley), Jonathan Baker Jan 2003

Competitive Price Discrimination: The Exercise Of Market Power Without Anticompetitive Effects (Comment On Klein And Wiley), Jonathan Baker

Articles in Law Reviews & Other Academic Journals

A firm that discriminates in prices faces a downward sloping demand curve, and thus could potentially raise price by reducing output. For this reason, evidence of price discrimination is relevant to assessing the possibility of market power, as antitrust law has long recognized. But price discrimination can be beneficial as well as harmful, and can reasonably be termed competitive if entry is easy. Hence a demonstration that entry is easy rebuts the inference of anticompetitive effect when price discrimination is the basis for proof of market power, breaking the link between market power and anticompetitive effect. Klein and Wiley's ...


Balancing Patent Rights And Affordability Of Prescription Drugs In Addressing Bio-Terrorism: An Analysis Of In Re Ciprofloxacin Hydrochloride Antitrust Litigation, James T. Gathii Jan 2003

Balancing Patent Rights And Affordability Of Prescription Drugs In Addressing Bio-Terrorism: An Analysis Of In Re Ciprofloxacin Hydrochloride Antitrust Litigation, James T. Gathii

Faculty Publications & Other Works

No abstract provided.


The Uses Of Business Theory In Antitrust Litigation, Spencer Weber Waller Jan 2003

The Uses Of Business Theory In Antitrust Litigation, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.


Public Choice Theory And The International Harmonization Of Competition Policy, Spencer Weber Waller Jan 2003

Public Choice Theory And The International Harmonization Of Competition Policy, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.


The Incoherence Of Punishment In Antitrust, Spencer Weber Waller Jan 2003

The Incoherence Of Punishment In Antitrust, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.


The Bitter Has Some Sweet: Potential Antitrust Enforcement Benefit From Patent Law's Procedural Rules, Joseph S. Miller Jan 2003

The Bitter Has Some Sweet: Potential Antitrust Enforcement Benefit From Patent Law's Procedural Rules, Joseph S. Miller

Scholarly Works

No abstract provided.