Law Commons^™

Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford

D. Daniel Sokol

The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection …

Reinvigorating Criminal Antitrust?, D. Daniel Sokol

D. Daniel Sokol

Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already “on the books.” A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are “on the books” but have not been used in over a …

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

D. Daniel Sokol

Antitrust is an important area of law and policy for most companies in the world. Having divergent rules across antitrust systems means that the same economic behavior may be treated differently depending on the jurisdiction, leading to disparate outcomes in which one jurisdiction finds illegal behavior (but the other does not) when the underlying behavior may be pro-competitive. This disparate set of outcomes creates a world in which the most stringent antitrust system may produce the global standard. As a result, if the antitrust rules applied are too rigid, they threaten to hurt consumers not merely in the jurisdiction where …

Section 2 Enforcement And The Great Recession: Why Less (Enforcement) Might Mean More (Gdp), Alan J. Meese

Alan J. Meese

The Great Recession has provoked calls for more vigorous regulation in all sectors, including antitrust enforcement. After President Obama took office, the Antitrust Division of the Department of Justice abandoned the Bush Administration’s standard of liability under section 2 of the Sherman Act, which forbids unlawful monopolization, as insufficiently interventionist. Based on the premise that similarly lax antitrust enforcement caused and deepened the Great Depression, the Obama Administration outlined a more intrusive and consumer-focused approach to section 2 enforcement as part of a larger national strategy to combat the “extreme” economic crisis the nation was then facing.

This Essay draws …

Debunking The Purchaser Welfare Account Of Section 2 Of The Sherman Act: How Harvard Brought Us A Total Welfare Standard And Why We Should Keep It, Alan J. Meese

Alan J. Meese

The last several years have seen a vigorous debate among antitrust scholars and practitionersa bout the appropriates tandardf or evaluating the conduct of monopolists under section 2 of the Sherman Act. While most of the debate over possible standards has focused on the empirical question of each standard's economic utility, this Article undertakes a somewhat different task: It examines the normative benchmark that courts have actually chosen when adjudicating section 2 cases. This Article explores three possible benchmarks-producer welfare, purchaser welfare, and total welfare-and concludes that courts have opted for a total welfare normative approach to section 2 since the …

Antitrust Federalism And State Restraints Of Interstate Commerce: An Essay For Herbert Hovenkamp, Alan J. Meese

Alan J. Meese

No abstract provided.

Trade Associations, Information Exchange, And Cartels, Spencer Weber Waller

Spencer Weber Waller

Trade associations can play a procompetitive role in an economy but, as an association of actual and potential competitors, can also raise important competition law issues that must be addressed carefully by legal counsel. This Issue Paper presents a hypothetical problem that illustrates many of the issues that counsel can confront in representing a trade association, its members, or company executives. The Issue Paper raises many of the issues from a United States' perspective with occasional comparative examples from other jurisdictions. Carefully consider how your jurisdiction would, and should, address these all too real issues. In thinking about the …

How Much Of Health Care Antitrust Is Really Antitrust?, Spencer Weber Waller

Spencer Weber Waller

No abstract provided.

Are Antitrust Class Actions Dead In The Sixth Circuit?, Laura F. Rothstein

Laura Rothstein

No abstract provided.

Taking Antitrust Away From The Courts, Ganesh Sitaraman

Ganesh Sitaraman

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of …

Framing Franchise Antitrust Litigation: The Legacy Of Kodak And Queen City Pizza, Randy D. Gordon

Randy D. Gordon

A decade ago, many antitrust commentators were predicting a “revival” of franchise antitrust claims flowing in the wake of Eastman Kodak Co. v. Image Technical Services, Inc. The thinking was that Kodak’s recognition of a claim for monopolization of an “aftermarket” for parts and services separate from each other and from a primary product might be extended to cover franchise relationships in which the franchisee is required to purchase fungible products from its franchisor, even though those products could be purchased elsewhere on more favorable terms. Fairly quickly, though, the Third Circuit decided Queen City Pizza, Inc. v. Domino’s Pizza, …

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts and …

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help courts and counsel …

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to confirm …

Avishalom Tor Presented At 3rd Haifa-Loyola Conference On Recent Challenges To Antitrust, Avishalom Tor

Avishalom Tor

Professor Tor presented his work on Boundedly Rational Consumers: Three Challenges for Antitrust at the 3rdHaifa-Loyola Conference on Recent Challenges to Antitrust on May 9.

The Hidden Costs Of Free Goods: Implications For Antitrust Enforcement, Michal S. Gal, Daniel L. Rubinfeld

Daniel L. Rubinfeld

Today a growing number of goods and services are provided in the marketplace free of charge; indeed, free or the appearance of free, have become part of our ecosystem. More often than not, free goods and services provide real benefits to consumers and are clearly pro-competitive. Yet free goods may also create significant costs. We show that despite the fact that the consumer does not pay a direct price, there are indirect prices that reflect the opportunity cost associated with the consumption of free goods. These indirect costs can be overt or covert, in the same market in which the …

Hospital Mergers And Economic Efficiency, Roger D. Blair, Christine Piette Durrance, D. Daniel Sokol

D. Daniel Sokol

Consolidation via merger both from hospital-to-hospital mergers and from hospital acquisitions of physician groups is changing the competitive landscape of the provision of health care delivery in the United States. This Article undertakes a legal and economic examination of a recent Ninth Circuit case examining the hospital acquisition of a physician group. This Article explores the Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke’s Health System, Ltd. (St. Luke’s) decision—proposing a type of analysis that the district court and Ninth Circuit should have undertaken and that we hope future courts undertake when analyzing mergers in the …

Statement Of Paul F. Figley Before The Committee On The Judiciary 
Subcommittee On Regulatory Reform, Commercial And Antitrust Law, United States House Of Representatives, Paul F. Figley

Paul Figley

The Chinese Anti-Monopoly Law: New Developments And Empirical Evidence, Michael Faure, Xinzhu Zhang, Susan Farmer

Susan Beth Farmer

Beth Farmer contributed the following chapter: "Competition Policy in China: Trends in Private Civil Litigation"

Effective enforcement of competition laws and regulations benefits society, consumers and market participants, and promotes a competition culture. Private civil actions can contribute to healthy economic development (AML Article 1), consumer welfare, and economic efficiency and more complete and effective enforcement of competition law. This chapter discusses developments in private civil actions under the Chinese AML in the context of recent Provisions of the Supreme People’s Court, national development goals, and the experience of four years of active civil litigation. A spokesperson of the Intellectual …

The Impact Of China's Antitrust Law And Other Competition Policies On U.S. Companies, Susan Beth Farmer

Susan Beth Farmer

This article is based on the author's testimony for part of the hearings on “The Impact of China’s Antitrust Law and Other Competition Policies On U.S. Companies,” held by the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy on July 13, 2010. It describes developments in the enforcement and application of the Chinese Anti-Monopoly Law, interpretation and enforcement during the two years since the AML came into effect, with particular attention to merger review. It comments on the organization and staffing of the enforcement agencies and the publication of numerous procedures, guidelines and regulations, which suggests that …

Altering The Balance Between State Sovereignty And Competition: The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer

Susan Beth Farmer

In the post-Seminole Tribe world, the legal analysis in situations where states have chosen regulation over competition, supplanting the free functioning of markets, will diverge depending upon the identity of the defendant. If a state, its agencies, or departments are the named defendants, the broader Eleventh Amendment analysis controls and claims for damages against government entities must be dismissed on the ground of sovereign immunity. If the defendant is a private firm, the narrower State Action Doctrine, which has been crafted to balance true exercise of state sovereignty against the goal of competition, provides immunity for private defendants. As a …

Guilds At The Millennium: Antitrust And The Professions: Introduction, Susan Beth Farmer

Susan Beth Farmer

This Article is an Introduction to the Symposium Issue of the Loyola Consumer Law Review. The papers published in the symposium issue were originally presented at the meeting of the Section on Antitrust and Economic Regulation of the Association of American Law Schools (AALS) at the Association Annual Conference in 2002.

Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer

Susan Beth Farmer

This article was presented at a symposium entitled “Public and Private: Are the Boundaries in Transition?” sponsored by the American Antitrust Institute on June 24, 2010. It proposes a different paradigm, which more precisely describes regulation and competition in the insurance sector. This relationship is the shifting boundary between state and federal regulation instead of a boundary between the public and private sectors. The McCarran-Ferguson Act was adopted to protect firms acting in the business of insurance from federal antitrust scrutiny, but its language and impact goes far beyond federal competition law. So broad is the exemption that the modern …

Balancing State Sovereignty And Competition: An Analysis Of The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer

Susan Beth Farmer

The great impact of the Seminole Tribe v. Florida decision will likely be felt in the range of federal causes of action that have exclusive remedies in federal court. Antitrust cases are among such causes of action. In seeking to avoid antitrust liability, defendants have invoked the protections of the antitrust state action doctrine, which immunizes only that anticompetitive activity imposed and supervised by states. This immunity bars suits against state and private actors alike. After Seminole Tribe, state defendants will escape all antitrust liability, whether or not the traditional requirements of the state action doctrine have been met. Thus, …

More Lessons From The Laboratories: Cy Pres Distributions In Parens Patriae Antitrust Actions Brought By State Attorneys General, Susan Beth Farmer

Susan Beth Farmer

The structure of the article is outlined in the Table of Contents. First, the article introduces a problem - the denial of an effective remedy for consumers overcharged by antitrust conspiracies, then it describes the legislative solution and identifies the unintended consequences that followed. Next, it proposes two alternative means to resolve the newly discovered issue and, finally, structures a proposed test for courts seeking to order the most efficient and effective remedy for consumers in these cases. The article explains that the Hart-Scott-Rodino Antitrust Improvements Act was adopted to fill a gap in antitrust remedies, which had made treble …

Monopoly Sports Leagues, Stephen Ross

Stephen F Ross

This Article argues that the government should break up both Major League Baseball and the NFL to provide for competing economic entities in each sport. Part I details the harm monopoly sports leagues cause in several different markets and explains why a competitive league structure can correct such harms. Part II discusses why regulatory solutions are poor substitutes for competition as a means of redressing these harms. Part III explains why neither baseball nor football is a "natural monopoly" and argues that no persuasive evidence suggests that rival leagues cannot exist in those sports. Part IV examines how the antitrust …

The Supreme Court's Renewed Focus On Inefficiently Structured Joint Ventures, Stephen Ross

Stephen F Ross

Antitrust courts and commentators have long appreciated that joint ventures among rival firms have the potential to provide benefits to consumers and the economy through synergies and economies of scale, but also raise the potential of lessening competition among the venture principals. The case law and academic literature have often ignored, however, the potential harm that befalls consumers when joint ventures with market power are structured in a manner that gives the principals the ability to direct policy and a strategy in a manner that advances their parochial self-interest, rather than the interests of the venture-as-a-whole. The Supreme Court's recent …

The Misunderstood Alliance Between Sports Fans, Players, And The Antitrust Laws, Stephen Ross

Stephen F Ross

The baseball strike and the ongoing hostilities between the players' association and owners have evoked criticism and frustration among fans and others. Although the players successfully defeated the owners' most recent attempts to reduce major league competition, the threat of future imposition of competitive restraints by the owners remains. In this article Professor Stephen F. Ross argues that blanket restraints on the market for players affirmatively inhibit on-the-field competition and consequently offend the Sherman Act. The article begins with the proposition that monopsony - price-fixing behavior by buyers', rather than sellers' cartels - implicates the Sherman Act. Restraints on competition …

Sports And The Law: Text, Cases, And Problems, 5th, Stephen Ross, Paul Weiler, Gary Roberts, Roger Abrams

Stephen F Ross

This casebook introduces students to the fundamentals of labor, antitrust, and intellectual property law as applied in the professional and amateur sporting industries. It covers the unique office of the league commissioner and special concerns with the “best interests of sports”; the contract, antitrust, and labor law dimensions of the player-labor market; the peculiar institution of the player agent in a unionized industry; the economic and legal implications of agreements among league owners and responses to rival leagues; the system of commercialized college athletics governed by the NCAA and how law impacts individual sports like golf, tennis and boxing; as …

Reconsidering Flood V. Kuhn, Stephen Ross

Stephen F Ross

Within the academia, two very different groups of legal scholars have devoted a great deal of attention to Flood v. Kuhn. Those specializing in sports law have either attached Flood as a ridiculous decision that improperly distinguished between baseball and other professional sports, or have praised it for waging guerrilla warfare on the idea that Section 1 of the Sherman Act should apply to intra-league arrangements by owners of the professional sports teams. Those viewing Flood through the lens of statutory interpretation perceive the decision as adhering rigidly to the principle of stare decisis; this rigidity has been both praised …