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2005

Antitrust

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Institution
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Articles 1 - 26 of 26

Full-Text Articles in Law

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp Dec 2005

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged ...


How High Do Cartels Raise Prices? Implications For Optimal Cartel Fines, John M. Connor, Robert H. Lande Dec 2005

How High Do Cartels Raise Prices? Implications For Optimal Cartel Fines, John M. Connor, Robert H. Lande

All Faculty Scholarship

This Article examines whether the current penalties in the United States Sentencing Guidelines are set at the appropriate levels to deter cartels optimally The authors analyze two data sets to determine how high on average cartels raise prices. The first consists of every published scholarly economic study of the effects of cartels on prices in individual cases. The second consists of every final verdict in a US. antitrust case in which a neutral finder of fact reported collusive overcharges. They report average overcharges of 49% and 31% for the two data sets, and median overcharges of 25% and 22%. They ...


The Residency Match: Competitive Restraints In An Imperfect World, Kristin Madison Oct 2005

The Residency Match: Competitive Restraints In An Imperfect World, Kristin Madison

Faculty Scholarship at Penn Law

Several years ago physicians filed a lawsuit alleging that “the match,” the more than fifty-year-old system by which medical students and other applicants are assigned to medical residency programs, violates Section 1 of the Sherman Act. Last year, without hearings or substantive debate on the issue, Congress found that the match was “highly efficient” and “pro-competitive” and granted a retroactive antitrust exemption for its operation. These seemingly incompatible views invite further analysis of the merits of the residency match from the perspective of public policy. This article considers the arguments of match advocates and critics, evaluating both theoretical models and ...


Federalism And Antitrust Reform, Herbert J. Hovenkamp Oct 2005

Federalism And Antitrust Reform, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action ...


Should Antitrust Education Be Mandatory (For Law School Administrators)?, Royce De R. Barondes, Thomas A. Lambert Oct 2005

Should Antitrust Education Be Mandatory (For Law School Administrators)?, Royce De R. Barondes, Thomas A. Lambert

Faculty Publications

The Executive Committee of the Association of American Law Schools has adopted a Statement of Good Practices that purports to limit the times when law schools may make offers to hire faculty members at other schools. Schools are generally not to make offers for indefinite appointments to professors on other faculties after March 1, subject to extension for two months with the consent of the incumbent's dean. They also are not to make offers contemplating resignation from a current faculty position more than two weeks following those deadlines. Proceeding on the assumption that the AALS policy, whose express terms ...


Discounts And Exclusions, Herbert J. Hovenkamp Aug 2005

Discounts And Exclusions, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The discounting practices of dominant firms has emerged as one of the most problematic areas of private antitrust enforcement against single-firm conduct. The most difficult discount practices to assess are bundled, or multi-product discounts in situations where no significant rival produces every product that is included in the bundle. A debate has emerged over whether such discounts are properly assessed under a legal test that analogizes them to predatory pricing or to tying. Defendants typically prefer predatory pricing analogies, requiring a showing that the price of the assembled bundle was below a relevant measure of cost, such as marginal cost ...


Unilateral Effects: The Enforcement Act Under The Old Ec Merger Regulation, Claus-Dieter Ehlermann, Axel Gutermuth Jun 2005

Unilateral Effects: The Enforcement Act Under The Old Ec Merger Regulation, Claus-Dieter Ehlermann, Axel Gutermuth

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The reform of the EC Merger Regulation was preceded by an animated debate about whether the traditional "dominance" test allowed the Commission to challenge mergers that did not lead to single firm or collective dominance in the traditional sense, but nevertheless may have reduced competition to the detriment of consumers. The authors submit that the dominance test failed to reach such situations of "unilateral" or "non-coordinated" effects. The old Merger Regulation therefore suffered from a potential "enforcement gap" that was closed only by the legislative change to the "significant impediment of effective competition" test. National jurisdictions still using variants of ...


Antitrust And Competition Law Update: Agencies Send A Strong Message On Hsr Filing, William J. Kolasky, Robert Bell, James W. Lowe, Leon Greenfield, A. Douglas Melamed, Veronica Kayne, Ali Stoeppelwerth, Janet Ridge May 2005

Antitrust And Competition Law Update: Agencies Send A Strong Message On Hsr Filing, William J. Kolasky, Robert Bell, James W. Lowe, Leon Greenfield, A. Douglas Melamed, Veronica Kayne, Ali Stoeppelwerth, Janet Ridge

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The Federal Trade Commission and Department of Justice’s Antitrust Division last week each announced enforcement actions against and settlements with parties that alleged failed to make required notifications of transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. Each case resulted in a significant fine (one of $800,000 and one of $1 million) and signaled the agencies’ intent to pursue vigorously parties that fail -- intentionally or negligently -- to meet their obligations under the HSR Act. Moreover, both cases address the scope of the HSR Act’s “investment only” exemption and show that the agencies construe it ...


Trading And Distribution In China, Lester Ross, Kenneth Zhou Apr 2005

Trading And Distribution In China, Lester Ross, Kenneth Zhou

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Trading and distribution rights were major issues in the negotiation of China’s entry to the World Trade Organisation, a process which took 14 years before concluding in late 2001. Trading rights, i.e. the right to import and export goods, had historically been mainly restricted to a small number of largely sector-specific state-owned monopoly trading enterprises. Trading rights were modestly liberalised in the years preceding China’s entry, but generally remained tightly restricted.


Antitrust Analysis Of B2b Transaction, Akira Inoue Apr 2005

Antitrust Analysis Of B2b Transaction, Akira Inoue

Cornell Law School Inter-University Graduate Student Conference Papers

B2B is a business-to-business market place that uses internet to connect each other business. It has gotten a lot more attention recently in Japan as well as in the U.S. because it is possible to lower the procurement costs of raw material and accomplish several procompetitive effects such as communication efficiencies. However, in spite of these pro transactional natures of B2B, it could also cause anticompetitive effects on market place. In other words, the fact that buyers communicate easily through the internet means they could easily form a cartel or conclude an agreement to restrain the free competition and ...


“Start-Up Aid” For Low Cost Carriers– A Policy Perspective, Sven Völcker Apr 2005

“Start-Up Aid” For Low Cost Carriers– A Policy Perspective, Sven Völcker

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 7 February 2005, the European Commission published draft “Community guidelines on the financing of airports and start-up aid to airlines departing from regional airports” for consultation. This article focuses on the Draft Guidelines’ statements on “start-up aid,” which seek to integrate the Commission’s statements in last year’s Charleroi decision into a consistent state aid policy framework. It is submitted here that such an attempt is highly problematic, given the absence of a coherent and objective justification for start-up aid in its proposed form. The Commission should not depart from its long-standing hostility to operating aid for reasons ...


A Rational Design Theory Of Transgovernmentalism: The Case Of E.U.-U.S. Merger Review Cooperation, Christopher A. Whytock Apr 2005

A Rational Design Theory Of Transgovernmentalism: The Case Of E.U.-U.S. Merger Review Cooperation, Christopher A. Whytock

Faculty Scholarship

There are two basic forms of legal and regulatory cooperation in world politics: interstate and transgovernmental. The former involves states behaving as unitary actors, facing the world as integrated units and each speaking with one voice in its interactions with other unitary states. The latter occurs when cross-border cooperation takes place directly between governmental subunits of different states, such as courts and regulatory agencies. But why is legal and regulatory cooperation among some states and in some issue areas principally interstate, while among other states and in other issue areas it is primarily transgovernmental? The principal goal of this article ...


Oracle In Brussels, Christian Duvernoy, Sven Völcker Mar 2005

Oracle In Brussels, Christian Duvernoy, Sven Völcker

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

It was hands across the water when both a U.S. district court and the European Commission cleared the $10.3 billion merger of Oracle and PeopleSoft. The Department of Justice, which had opposed the deal, had decided not to appeal its defeat in the San Francisco court, and it is thought that the Commission took this as a sign that U.S. regulators would not take it amiss if their European counterparts also let the merger proceed. In any event, there was none of the resentment and outrage that bubbled over not so long ago when U.S. antitrust ...


Schering-Plough Corp. V. Federal Trade Commission: Eleventh Circuit Rejects The Ftc’S Position On “Reverse Payments” In Patent Suit Settlements, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky Mar 2005

Schering-Plough Corp. V. Federal Trade Commission: Eleventh Circuit Rejects The Ftc’S Position On “Reverse Payments” In Patent Suit Settlements, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

In recent years, the Federal Trade Commission (“FTC” or the “Commission”) has investigated several settlement agreements between pioneer and generic drug manufacturers involving “reverse payments.” In the view of the FTC, reverse payments are cash that a pioneer drug manufacturer pays to a generic manufacturer who has challenged the patent(s) protecting the pioneer drug, in exchange for the generic manufacturer’s agreement to delay market entry. Such payments sometimes occur in the settlement of patent infringement actions. The Commission has been extremely skeptical of reverse payments, viewing them as objective indicia of intent to illegally share monopoly profits that ...


Antitrust Enforcement: Four New Investigations Opened By The Agcm In The First Months Of 2005, Antonio Capobianco, Stefano Fratta Mar 2005

Antitrust Enforcement: Four New Investigations Opened By The Agcm In The First Months Of 2005, Antonio Capobianco, Stefano Fratta

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The first three months of this year have witnessed extensive enforcement activity by Italy’s Autorità Garante per la Concorrenza ed il Mercato (“AGCM”). In the closing 90 days of the chairmanship of Professor Tesauro, former Advocate General at the European Court of Justice, the AGCM initiated a number of investigations for infringement of EC competition rules in various key markets: natural gas, telecommunication services, pharmaceuticals and postal services. The cases reported below are of particular interest since they are the first examples of enforcement of EC competition rules by the AGCM in the new “modernised” system of European enforcement.


Spanish Competition Tribunal Rejects Price Squeeze Allegations In Relation To Mobile Vpn Services, Axel Desmedt, Pablo Charro Mar 2005

Spanish Competition Tribunal Rejects Price Squeeze Allegations In Relation To Mobile Vpn Services, Axel Desmedt, Pablo Charro

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On December 20 and 22, the Spanish Competition Tribunal (Tribunal de Defensa de la Competencia, or TDC) dismissed three actions that were brought by Uni2 and WorldCom (both alternative fixed operators) against the three Spanish mobile operators (Telefonica Moviles, Vodafone, and Amena) for abuse of a dominant position. The complaints alleged that the three mobile operators applied a price squeeze on the corporate market segment and discriminatory pricing practices as regards mobile termination services. In particular, according to Uni2 and WorldCom, during the period of 2000-2002, the three Spanish mobile operators offered retail services to corporate clients (including pricing terms ...


Antitrust And Competition Law Update, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Durholz Ridge Mar 2005

Antitrust And Competition Law Update, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Durholz Ridge

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The US Federal Trade Commission(FTC) has announced sweeping changes to the Hart-Scott-Rodino (HSR) Act premerger reporting rules, including those governing transactions involving partnerships and LLCs, that will come into effect on April 6, 2005. See 70 Fed. Reg. 11526 (March 8, 2005). In addition to reconciling the HSR analysis of LLCs, partnerships and other unincorporated entities with that of corporations, the new rules will make a number of technical adjustments and codify some informal FTC interpretations. The changes will make some transactions reportable that have historically be exempt; this effect will be offset to some extent by new exemptions ...


Should Antitrust Education Be Mandatory (For Law School Administrators)?, Thom Lambert, Royce De R. Barondes Jan 2005

Should Antitrust Education Be Mandatory (For Law School Administrators)?, Thom Lambert, Royce De R. Barondes

Faculty Publications

The purpose of this essay is merely to examine the pertinent antitrust issues. The essay proceeds on the assumption that the AALS policy, whose terms are precatory, speaks to what is in fact an agreement among law schools. As noted below, the policy itself contemplates that law school deans will seek waivers, in individual cases, extending the time periods for up to two months. Were the policy to be litigated, law schools might dispute the existence of an agreement. We believe, though, that the nature of the policy strongly suggests that it represents an agreement among law schools and that ...


The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam F. Halabi Jan 2005

The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam F. Halabi

Faculty Publications

The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act ("FTAIA") has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. Recently, the U.S. Supreme Court ruled in E Hoffmann-La Roche, Ltd. v. Empagran S.A. ("Empagran") that the doctrine of "comity among nations" limited the reach of U.S. anti-trust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This article argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the ...


Dispelling Myths: A Real World Perspective On Trinko, Sean Flynn Jan 2005

Dispelling Myths: A Real World Perspective On Trinko, Sean Flynn

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Two Modern Antitrust Moments: A Comment On Fenton And Kwoka, Jonathan Baker Jan 2005

Two Modern Antitrust Moments: A Comment On Fenton And Kwoka, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Law As Design: Objects, Concepts, And Digital Things, Michael J. Madison Jan 2005

Law As Design: Objects, Concepts, And Digital Things, Michael J. Madison

Articles

This Article initiates an account of things in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions. Some are familiar, such as the reification of conceptual things as material things, so that computer software is treated as a good. Others are new, such as the characterization of ...


Looking Ahead To The 2005-06 Term (2005), Jonathan H. Adler Jan 2005

Looking Ahead To The 2005-06 Term (2005), Jonathan H. Adler

Faculty Publications

This essay surveys the upcoming 2005-06 term of the Supreme Court, a term that may be as notable for what it says about the future direction of the Supreme Court as it is for specific decisions in any particular cases. This does not mean the term lacks important cases. To the contrary, this coming year the Court will consider the constitutionality of the Solomon Amendment, address the application of the Religious Freedom Restoration Act to religious use of drugs, and determine whether the federal government can effectively preempt Oregon's decision to legalize doctor-assisted suicide. It will revisit contemporary federalism ...


Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic Jan 2005

Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic

GW Law Faculty Publications & Other Works

Mergers have the potential for negative social welfare consequences from increased likelihood or effectiveness of future collusion. This raises the question of whether there are meaningful thresholds for the post-merger industry that should trigger significant scrutiny by the Department of Justice or Federal Trade Commission. This paper provides empirical analysis relevant to this question. The data does not come from an industry in which there were mergers, but instead from an industry in which explicit collusion was admittedly rampant in the 1990's, the Vitamins Industry. Different vitamin products are produced by different numbers of firms, and for different vitamin ...


The Copyright Paradox, Tim Wu Jan 2005

The Copyright Paradox, Tim Wu

Faculty Scholarship

Copyright law has become an important part of American industrial policy. Its rules are felt by every industry that touches information, and today that means quite a bit. Like other types of industrial policy, copyright in operation purposely advantages some sectors and disadvantages others. Consequently, today's copyright courts face hard problems of competition management, akin to those faced by the antitrust courts and the Federal Communications Commission.

How should courts manage competition using copyright? Over the last decade, writers have begun to try to understand the "other side" of copyright, variously called its innovation policy, communications policy, or regulatory ...


The Copyright Paradox, Tim Wu Jan 2005

The Copyright Paradox, Tim Wu

Faculty Scholarship

Over the last decade, writers begun to try and understand the other side of copyright, sometimes called its competition policy, communications policy, or regulatory side. This paper focuses attention on a crucial problem familiar to antitrust courts that is becoming more clearly important to copyright decisions. In both copyright and antitrust, a central question is how important intent is. Judges, stated slightly differently, face a choice between what we can characterize as the bad actor and welfarist models of deciding cases. What we can call the bad actor approach punishes alleged wrong-doers based on the mens rea of the suspect ...