Antitrust and Trade Regulation Commons^™

Extending Predation Analysis To Monopolist's Bundled Discounts Under Section 2: An Economic, Legal, And Comparative Perspective, Seth B. Chertok

ExpressO

In LePage’s v. 3M, the Third Circuit decided the first case at the federal appellate court level that dealt with the subject of bundled discounts by a monopolist under Section 2 of the Sherman Act in the period following the U.S. Supreme Court’s decision in Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation. Prior to the decision in Brooke Group, the Third Circuit had only once before addressed this topic in Smithkline Corp. v. Eli Lilly and Company. Smithkline is only significant because it nearly suggested that any bundled discount, regardless of whether above or below cost, was anti-competitive. …

Anti-Monopoly Law In China: A Socialist Market Economy Wrestles With Its Antitrust Regime, Jared A. Berry

Brigham Young University International Law & Management Review

No abstract provided.

The Dual Purpose Of The American Jobs Creation Act Of 2004, Dennis J. Kokenos

ExpressO

The American Jobs Creation Act of 2004 claims to help bring offshore investments back to the United States. In reality, the AJCA does much more. The AJCA of 2004 makes adjustments to the U.S. tax code which helps bring the U.S. in line with existing international trade obligations as well as stimulating the U.S economy.

Wto Dispute Settlement And Competition Law: Views From The Perspective Of The Appellate Body's Experience, Claus-Dieter Ehlermann

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The current discussions on a future framework for competition policy within the World Trade Organization ("WTO")have revealed reservations against the full application of the WTO dispute settlement system to such a framework. The current dispute settlement system of the WTO is one of the results of the Uruguay Round negotiations. For an international agreement of nearly universal scope, this system is unique in its obligatory and quasi-automatic character. In general, complaints can be brought to the WTO against national laws which fail to comply with WTO obligations and also against a WTO-inconsistent application of national laws in individual cases. The …

Worst Us Antitrust Decisions...Ever - Part Two, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Last month we invited a panel of three US lawyers to discuss some of the worst antitrust decisions of all time. We now conclude that series, with the second set of candidates for the 'Hall of Shame'. Read the opinions carefully--we'll be picking the worst of the worst in a website survey next month.

Balancing Deterrence, Comity Considerations, And Judicial Efficiency: The Use Of The D.C. Circuit's Proximate Cause Standards For Determining Subject Matter Jurisdiction Over Extraterritorial Antitrust Cases, Stephanie Casy

American University Law Review

No abstract provided.

Administrative Law Judge Upholds Ftc Complaint Ordering Evanston Northwesternhealthcare Corporation To Unwind Five-Year-Old Acquisition , James Lowe, Alexander Krulic

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On October 21, 2005, the Federal Trade Commission (FTC) announced that Administrative Law Judge Stephen J. McGuire had ordered Evanston Northwestern Healthcare Corporation (ENH) to divest Highland Park Hospital, located in a Chicago suburb. (The decision can be found at http://www.ftc. gov/os/adjpro/d9315/051021idtextversion. pdf.) ENH had acquired Highland Park five years ago for $200 million. In an administrative complaint issued in February 2004, the FTC alleged that the acquisition had resulted in "substantially lessened competition" and higher prices for insurers and healthcare consumers for general acute care inpatient services sold to managed care organizations. In upholding part of the complaint, Judge …

Clarett V. National Football League: Defining The Non-Statutory Labor Exception To Antitrust Law As It Pertains To Restraints Primarily Focused In Labor Markets And Restraints Primarily Focused In Business Markets, Ronald Terk Sia

The University of New Hampshire Law Review

[Excerpt] “Contemporary sports have seen an influx of young talent opting for a chance at playing in the big leagues earlier at the expense of obtaining higher education. Many dream of playing professional sports—dreams often prohibited by player eligibility rules. In situations where the restraints are not argued to have been protected by non-statutory labor exception, antitrust law has been seen to set its talons into eligibility rules. […]

Federal antitrust law and national labor law set forth two conflicting policies that have created a periodic drama for sports fans concerned that their favorite sports will suffer a cataclysmic court …

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 …

What's So Great About Nothing? The Gnu General Public License And The Zero-Price-Fixing Problem, Heidi S. Bond

Michigan Law Review

In 1991, Linus Torvalds released the first version of the Linux operating system. Like many other beneficiaries of the subsequent dot-com boom, Torvalds worked on a limited budget. Clad in a bathrobe, clattering away on a computer purchased on credit, subsisting on a diet of pretzels and dry pasta, hiding in a tiny room that was outfitted with thick black shades designed to block out Finland's summer sun, Torvalds programmed Linux. Like some other beneficiaries of the subsequent dot-com boom, Torvalds created a product that is now used by millions. He owns stock options worth seven figures. Computer industry giants, …

Transparency In Global Merger Review: A Limited Role For The Wto?, Keith R. Fisher

ExpressO

This article identifies certain problems faced by parties to transnational merger transactions in view of the global proliferation in recent years of competition (and, specifically, merger review) laws. After considering the pros and cons of merger remedies (both structural and behavioral) that may be offered to mitigate potentially anticompetitive effects and illustrating (through a case study of the GE/Honeywell transaction) the pitfalls of divergent market definition even as between two legal regimes employing substantially similar standards, the article reviews and critiques proposals for establishing a supranational competition authority under the aegis of the World Trade Organization. While rejecting the WTO …

Deadly Discounts: How Reimportation Jeopardizes The Safety Of The U.S. Pharmaceutical Drug Supply Under The Federal Trade Commission Amendment, Nicole C. Bates

ExpressO

The amendment to a Federal Trade Commission (FTC) reauthorization bill, previously introduced as Senate Bill 334 (S.334) Pharmaceutical Market Access and Drug Safety Act of 2005 allows for the reimportation of prescription drugs into the United States from approximately 25 countries, including Canada via Internet pharmacies. There are no guarantees that the internet websites advertising as Canadian pharmacies are legitimate. The shipping of pharmaceutical drugs occurs through importation, which refers to drugs produced abroad then later shipped to the U.S., or re-importation, a term applied when drugs are produced in the U.S. and exported for sale to foreign countries and …

The Comparative Analysis On The Presumption Of Cartel Agreements Which Is Unique In The Korean Cartel Regulation Provision, Woo-Jong Jon

ExpressO

In terms of cartel regulation, Korea has a “presumption of agreement” provision that does not exist in the United States or in the European Union (EU). This provision is Article 19(5) of the Monopoly Regulation and Fair Trade Act (MRFTA). This provision was created for the convenience of enforcement because firms made cartel agreements by more sophisticated methods as the cartel regulation became more intense. Accordingly, in the continental law of Korea the approach of the courts in relation to cartel regulation is somewhat different to the United States. However, in terms of a standard for deciding specifically what to …

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Age has spawned major legal battles over the fundamental principles of intellectual property law and antitrust law. These diverse struggles can best be analyzed using the basic norm of "value added" from neo-classical normative economics. This analysis suggests that current intellectual property doctirnes provide excessive protection and current antitrust doctrines remain awkward in dealing with the cross-market leveraging of monopoly power in the presence of "natural monopolies" created by network effects.

Defining Nondiscrimination Under The Law Of The World Trade Organization, Julia Ya Qin

Law Faculty Research Publications

No abstract provided.

The Transformation Of World Trade, Joost Pauwelyn

Michigan Law Review

This Article contests the traditional view of the evolution of the world trade system. Rather than a unidirectional process of legalization focused exclusively on the system's normative structure, Part I of the Article, "The Explosion of the GATT Club," recounts the transformation from GATT to WTO as a bidirectional interaction between law and politics; in particular, between the system's legal-normative structure and its political, decision making branch Part II of this Article, "The Threat of a WTO Fortress," challenges the view that a choice must be made between politics and law or, put differently, between, on the one hand, democratic …

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 are …

Exclusive Dealing, The Theory Of The Firm, And Raising Rivals' Costs: Toward A New Synthesis, Alan J. Meese

Faculty Publications

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

My Summer Vacation At The European Commission, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

Among the more than 100 jurisdictions with active competition policy regimes today, the United States has the distinction of starting first, creating the most extensive set of judicial precedents, and possessing the largest and most experienced enforcement institutions. Antitrust institutions in the United States have long stood at the summit on any scale of international prestige and influence in the competition policy field. Yet any such ranking would also undoubtedly indicate that during the last decade or so, the antitrust institutions of the European Union have grown in size and sophistication to the point where they are comparably respected and …

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

ExpressO

This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

Conglomerating Antitrust Policy By Comparative Example: A Conceptual Analysis Of Merger Regulation In The United States, Japan, And The European Union, Jonathan T. Trexler

Brigham Young University International Law & Management Review

No abstract provided.

Securing American Sovereignty: A Review Of The United States' Relationship With The Wto: Hearing Before The Subcomm. On Federal Financial Management, Government Information, And International Security Of The S. Comm. On Homeland Security And Governmental Affairs, 109th Cong., July 15, 2005 (Statement Of Professor Robert K. Stumberg, Geo. U. L. Center), Robert Stumberg

Testimony Before Congress

No abstract provided.

China's Proposed Anti-Monopoly Law, Pamela Bookman

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Well-designed competition policy can promote consumer welfare and economic growth. Poorly designed policy can retard both. As China’s importance in the world economy grows steadily each year, so does the importance of its competition policy. Because China is a low-cost manufacturing center and home to an enormous market, foreign companies have invested in China extensively, including through joint ventures with Chinese companies that involve sharing the foreign companies’ intellectual property rights with their Chinese partners.

Empagran S.A. V. F. Hoffman-Laroche, Ltd.: Dc Circuit Restricts Reach Of Us Antitrust Laws Over Injuries Sustained In Foreign Commerce, Leon Greenfield, David Olsky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On June 28, 2005, the US Court of Appeals for the District of Columbia issued an important opinion on the extraterritorial reach of the US antitrust laws in Empagran S.A. v. F. Hoffman-Laroche, Ltd. The court held, on remand from the Supreme Court, that plaintiffs injured outside US commerce cannot bring antitrust suits in US courts unless the US effects of the anticompetitive conduct at issue are the proximate cause of their injuries. The decision construes narrowly the circumstances under which plaintiffs may be able to sue in US courts for injuries suffered in foreign commerce.

Us Merger Review: A ‘Goldilocksian’ Perspective, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

US merger control rests on four strong cornerstones. The first is section 7 of the Clayton Act, as amended by the Celler-Kefauver Act in 1950, which created the substantial lessening of competition standard as the test for the legality of mergers and acquisitions. The second is the Supreme Court’s 1962 decision in Philadelphia National Bank, which relied on the structure-conduct-performance paradigm from industrial organisation economics to fashion a presumption that mergers that significantly increase concentration in already concentrated industries will lessen competition, imposing on the parties the burden of rebutting the government’s structural case. The third is the Hart-Scott-Rodino Antitrust …

Single-Firm Conduct: The Search For The Holy Grail Of Administrable Procompetetive Standards, William Kolaskly

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

During my tenure as Deputy Assistant Attorney General for International Enforcement in the Antitrust Division of the United States Department of Justice, in a speech I delivered in London, in May 2002, I identified the regulation of single-firm conduct as the area of greatest divergence between U.S. and European competition policy. In the United States, led by the insights of the so-called Chicago School of economics, the courts have moved progressively toward an approach to single-firm conduct that has substantially narrowed the range of potential antitrust intervention. In Europe, by contrast, the courts appear to continue to take a more …

Collaborative Governance In The Restructured Electricity Industry, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

From "Federalization" To "Mixed Governance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh

Faculty Scholarship

Since the very moment of its adoption, the Sarbanes-Oxley Act of 2002 has been subject to a litany of critiques, many of them seemingly well-placed. The almost universal condemnation of the Act for its asserted 'federalization' of corporate law, by contrast, deserves short shrift. Though widely invoked - and blithely accepted - dissection of this argument against the legislation shows it to rely either on flawed assumptions or on normative preferences not ordinarily acknowledged (or perhaps even accepted) by those who criticize Sarbanes-Oxley for its federalization of state corporate law.

Once we appreciate as much, we can begin by replacing …

Sector Inquiries On The Italian Electricity And Natural Gas Markets Expose Failures In Both Liberalisation Processes., Antonio Capobianco

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 9 February 2005, the Autorità Garante della Concorrenza e del Mercato (AGCM) and the Autorità per l’Energia Elettrica e il Gas (AEEG) concluded a joint sector inquiry on the progress of liberalisation in the Italian electricity market (Electricity Sector inquiry). The Electricity Sector inquiry follows another joint inquiry by the two authorities a few months earlier on the progress of liberalisation of the natural gas market in Italy (Natural Gas Sector inquiry). The Natural Gas Sector inquiry was published on 19 June 2004. This article summarises the findings and the conclusions of both sector inquiries and describes the methodology …