Law Commons^™

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 report with DOJ, containing specific recommendations for antitrust, is promised for …

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. Phillip …

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 or anticompetitive agreements among firms—the …

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 from the …

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

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

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 drastically slashed …

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

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 …

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

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 conduct, and …

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

All Faculty Scholarship

No abstract provided.

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

All Faculty Scholarship

No abstract provided.

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

Presentations

Moderator for the Economists' Roundtable

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

Faculty Publications

No abstract provided.

Cooperative Federalism And Its Challenges, Philip J. Weiser

Publications

No abstract provided.

Modularity, Vertical Integration, And Open Access Policies: Towards A Convergence Of Antitrust And Regulation In The Internet Age, Joseph Farrell, Philip J. Weiser

Publications

Antitrust law and telecommunications regulation have long adopted different stances on whether to mandate open access to information platforms. This article aims to help regulators and commentators incorporate both Chicago School and post-Chicago School arguments in evaluating this basic policy choice, suggesting how they can be integrated in an effective manner. In particular, the authors outline three alternative models that the FCC could adopt to guide its regulation of information platforms and facilitate a true convergence between antitrust and regulatory policy.

Anticompetitive Settlement Of Intellectual Property Disputes, Mark D. Janis, Herbert J. Hovenkamp, Mark A. Lemley

Articles by Maurer Faculty

No abstract provided.

The Securities Analyst As Agent: Rethinking The Regulation Of Analysts, Jill E. Fisch, Hillary A. Sale

Faculty Scholarship at Penn Carey Law

No abstract provided.

Anticompetitive Settlement Of Intellectual Property Disputes, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

Faculty Scholarship at Penn Carey Law

The overwhelming majority of intellectual property lawsuits settle before trial. These settlements involve agreements between the patentee and the accused infringer, parties who are often competitors before the lawsuit. Because these competitors may agree to stop competing, to regulate the price each charges, and to exchange information about products and prices, settlements of intellectual property disputes naturally raise antitrust concerns. In this paper, we suggest a way to reconcile the interests of intellectual property law and antitrust law in evaluating intellectual property settlements. In Part I, we provide background on the issue. Part II argues that in most cases courts …

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 …

"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.

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

Faculty Publications & Other Works

No abstract provided.

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

Faculty Publications & Other Works

No abstract provided.

The Incoherence Of Punishment In Antitrust, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.

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 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 …

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 …

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 …