Antitrust and Trade Regulation Commons^™

Is A Ban On Non-Competes Supported By Empirical Evidence?, Sarah Oh Lam, Thomas Lenard, Scott Wallsten

Fordham Journal of Corporate & Financial Law

The U.S. Federal Trade Commission (FTC) has proposed a rule to declare virtually all non-compete agreements unfair methods of competition under Section 5 of the FTC Act and therefore, illegal. However, the empirical literature on non-compete agreements cited by the FTC in its Notice for Proposed Rulemaking (“NPRM”) shows mixed results on earnings, job creation, firm formation, entrepreneurship, training, investment, and firm value. Evidence in other current studies also does not support an economy-wide ban. The FTC concludes that the proposed rule would yield net benefits even though by its own admission it lacks the information necessary to conduct a …

The Public’S Companies, Andrew K. Jennings

Fordham Journal of Corporate & Financial Law

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …

Divined Comity: Assessing The Vitamin C Antitrust Litigation And Updating The Second Circuit’S Prescriptive Comity Framework, William Weingarten

Fordham Journal of Corporate & Financial Law

In re Vitamin C Antitrust Litigation, recently decided by the Second Circuit, sets a grave precedent for American plaintiffs seeking redress for antitrust injuries wrought by foreign defendants. The case involved a group of Chinese manufacturers and exporters of vitamin C, who conspired to fix prices and restrict output in the export market, injuring American consumers in import commerce. The foreign manufacturers conceded that they had colluded in fixing prices and restricting output, in flagrant violation of U.S. antitrust law. And yet, with the assistance of the Chinese government—intervening as amicus curiae—the defendants were successfully able to argue, on appeal …

Crawling To The Cure: The Monopolization Of The Breast Cancer Drug Market, Kira Le

Minnesota Journal of Law, Science & Technology

No abstract provided.

Pooling And Exchanging Competitively Sensitive Information Among Rivals: Absolutely Illegal Not Just Unreasonable, Peter C. Carstensen, Annkathrin Marschall

University of Cincinnati Law Review

An agreement to exchange competitive sensitive information among rivalrous competitors usually results from an intent to inhibit or restrict the discretion of those firms to engage in competition. Basic economic logic about competition leads to that conclusion. Hence, such an exchange is in itself a naked agreement in restraint of trade without legal justification. Currently, case law requires a more convoluted and irrelevant inquiry into market definition and market power before a court can condemn such agreements. This is the result of ambiguous Supreme Court decisions as well as the recognition that in a few instances there are plausible arguments …

About Selected Current Problems In The Financial Services Market, Edyta Rutkowska-Tomaszewska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

From the volume editor

Determinants Of Young Customers’ Decisions In The Financial Services Market On The Example Of Bank Accounts, Iwona Dorota Czechowska, Weronika Kuśmierska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The group of young customers, as a subject of research, is a cognitively interesting social group. Young customers constitute an important purchasing power. The attractiveness of this segment is due to the banks’ perspective, where young customers will become wealthy adults soon, and use the services of the banking sector. The aim of this study is to present and evaluate bank accounts offered to young customers. The authors seek to answer the research question of what the offer of bank accounts dedicated to young customers looks like, whether it is adapted to the needs of this customer group, and whether …

Disputes Between Payment Service Providers And Users Regarding Payment Transactions In The Light Of The Latest Polish Jurisprudence, Bartosz Wyżykowski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

A natural consequence of the increasingly widespread use of modern payment methods is the increasing development of related crimes. As a result, the issue of risk and liability distribution for unauthorized payment transactions is becoming more and more significant, both from a legal and social point of view. The article reviews selected final judgments of Polish courts in cases where payment transactions were the subject of dispute.

Insurable Interest Of Parties To A Leasing Contract Towards A Subject Of The Contract, Stefania Yerka

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article has as its focus the issue of the existence of an ‘insurable’ interest with regard to the subject of a lease contract. In generally accepted market practice, it is common to use an insurance contract on someone else’s account structure, for the purpose of insuring the subject of a lease contract. Given the specific character and complexity of mutual rights and obligations of parties to a lease contract, doubts arise as to whether the aforementioned structure is appropriate in every case. In order to critically examine the problem, the analysis covers, in the first place, the legal nature …

Kneecapping Scalping: Ending The Predatory Scourge Plaguing E-Commerce Using Unfair Practice Frameworks, Zachary Michael Elvove

Brooklyn Law Review

Concert goers and sports fans are no longer the only people forced to pay absurdly marked up prices. From baby formula to video game consoles, scalping dominates the sale of goods online. Yet existing frameworks for antiscalping—specifically their relentless focus on tickets, bots, and hidden fees—fundamentally fail to address the parasitic profiteering that underpins scalping in the modern economy. We cannot understand the scope of harms posed by pernicious online resale if we focus purely on the minutiae of ticket markets and technological exploitation—the sheer number of industries affected by scalping and size of the market failure it causes demand …

Fraud On Airbnb: How To Regulate An Emerging And Problematic Industry, Samuel Mcneal

Journal of the National Association of Administrative Law Judiciary

In Section I, this article explains the issues within Airbnb and why they need addressing. Section II explains the current state of Airbnb regulation and identifies the loopholes within that regulation that harm consumers. Section III shows why Section 230 of the Communications Decency Act protects Airbnb from some regulations, but why it also allows harm to persist against Airbnb. Section IV will posit that the Federal Trade Commission should oversee a broad, context-based regulation of Airbnb to protect consumers through a risk management reporting mechanism similar to the financial reporting to the Securities and Exchange Commission required under the …

Seminar On The Rule Of Law And The Internal Market Of The Eu/Eea, Jacek Mainardi

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Hearing Officers In Competition Proceedings Conducted By The European Commission For The Implementation Of Article 101 And 102 Tfeu, Justyna Kownacka

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article analyzes the role played by the Hearing Officer in competition proceedings conducted by the European Commission to implement Article 101 and 102 TFEU. Currently, the Hearing Officer is a guarantor of the effective exercise of procedural rights in the course of all competition proceedings before the EC, while contributing to the objectivity, transparency and efficiency of the proceedings. The article also discusses the proposals to change the scope of the powers of the Hearing Officer, as reported in doctrine and literature, and refers to the possibility and legitimacy of introducing such institution into Polish competition law.

Aclp - Comments To The Fcc Re Net Neutrality - December 2023, New York Law School

Reports and Resources

No abstract provided.

Protection Of An Insolvent Undertaking – Comments Against The Background Of Simplifi Ed Restructuring Proceedings, Daria Kostecka-Jurczyk, Katarzyna Marak

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In 2020, as a result of the crisis caused by the COVID-19 pandemic, many legal and economic tools were implemented in Poland to stop undertakings from going bankrupt. One of such solutions was the Simplifi ed Restructuring Procedure. A few months later, it was replaced by Proceedings for the Approval of the Arrangement. Both of these procedures are extrajudicial, and their main purpose was to protect debtors and assist their restructuring. Indirectly, the procedure was also keeping the business activities of an insolvent undertaking going, with all the consequences that are associated with it, and above all, the protection of …

Hit The Reset Button: Video Games, Platforms, And Changing Antitrust Vertical Merger Policy, Cahill Maffei

Student Scholarship

For decades, antitrust law has treated vertical mergers as almost per se legal. Courts and scholars embraced the economic theories of the Chicago School, which predict that vertical mergers almost always lead to efficiencies that benefit consumers through lower prices. As a result, vertical mergers are almost never challenged and those that are usually fail. More recently, politicians, regulators, and pundits have become increasingly concerned with the growing concentration of wealth and power among America’s large technology corporations. Part of their dominance can be explained by the rapid rise of platform business models, which through network effects can entrench dominant …

Paulina Korycińska-Rządca, Protection Of Secrets Of The Party To Antitrust Proceedings Concerning Competition-Restricting Practices, C.H. Beck, Warsaw 2020, Anna Piszcz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

How Trade Liberalization And Labor Development Could Coincide In The Philippines, Aeneas Dr Hernandez, Brendan Emmanuel A. Miranda, Martin William P. Regulano, Andrae Jamal Tecson, Martin William P. Regulano, Ma. Ella Oplas, Tereso S. Tullao Jr, Winfred M. Villamil

Angelo King Institute for Economic and Business Studies (AKI)

As the world adapts to the rapid pace of globalization in the 21st century, countries ease trade restrictions by gradually removing tariffs and non-tariff barriers to incentivize the free flow of goods across nations. This prevalence of trade liberalization policies propelled policymakers and economists to investigate the relationship between trade reforms and economic outcomes including wage inequality around the world. They found that trade liberalization, on average, has had a positive impact on economic growth, but prior studies that examine the effects of trade liberalization on wage inequality in developing countries have found mixed results. Recently, Murakami (2021) examined the …

Support Of Automation And Robotization Processes With Public Aid Regulations, Conclusions De Lege Ferenda, Janusz Michałek, Mirosław Pachucki

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In this article, the authors analyze the legal aspects of the possibility of using existing fiscal solutions for technology transfer to companies from the SME sector, also proposing the adoption of specific legislative solutions in this regard. In the authors’ opinion, changes taking place in the global economy, remodeling of supply chains in connection with COVID-19, or the war in Ukraine, force the process of investment relocation closer to the relevant markets. Imperfections in the level of automation among Polish entrepreneurs, resulting from the lack of awareness in this area, or from the lack of capital set aside for the …

Permissible Forms Of State Aid For Airlines In The Era Of The Covid-19 Pandemic (Part Ii), Jadwiga Urban-Kozłowska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The aim of this study is to critically analyze the use of two types of state aid – emergency aid (Article 107(2)(b) TFEU) and anti-crisis aid (Article 107(3)(b) TFEU), which played a key role in supporting air carriers during the COVID-19 pandemic. This will make it possible to compare both types of aid, and to answer the question of their importance and usefulness in the context of supporting air carriers, and more broadly, entrepreneurs overall, during extraordinary events such as COVID-19. The premises for each of these exemptions will be discussed separately, and theoretical considerations will be accompanied by examples …

Irrelevant Markets, Jan Polański

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

There is a widespread view in Polish antitrust literature that it is necessary to define the relevant market in every antitrust case. The above is in contradiction with, for example, the approach adopted in EU law. However, it is pointed out that such an obligation results in Polish law, in particular, from the actual wording of the Act on Competition and Consumer Protection. This article aims to defend the opposite thesis: defining relevant markets is not always necessary, and emphasis on defi ning them every time is even harmful and leads to the defi nition of “irrelevant” markets.

Protection Of An Insolvent Undertaking – Comments Against The Background Of Simplified Restructuring Proceedings, Joanna Affre, Mateusz Restel

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

In 2020, as a result of the crisis caused by the COVID-19 pandemic, many legal and economic tools were implemented in Poland to stop undertakings from going bankrupt. One of such solutions was the Simplifi ed Restructuring Procedure. A few months later, it was replaced by Proceedings for the Approval of the Arrangement. Both of these procedures are extrajudicial, and their main purpose was to protect debtors and assist their restructuring. Indirectly, the procedure was also keeping the business activities of an insolvent undertaking going, with all the consequences that are associated with it, and above all, the protection of …

Case Comment In Support Of The Judgment Of The Warsaw-Praga District Court Of 24 May 2022, Fi Le Reference Number: Iv Ca 752/21 On The Boundary Between The Management Of A Hotel Service And A Tourist Package, Dominik Borek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article cites the facts described in the judgment of the Warsaw-Praga District Court of 24 May 2022, ref. no. fi le: IV Ca 752/21. The ruling is of great importance for the hotel market and tourism organizers in Poland, as it concerns the definition of a hotel service, as opposed to a package-tourist event. The judgment sparked numerous comments in the tourism industry and the press. Even though it concerns a legal status no longer applicable in the field of organizing tourist events, it has practical signifi cance for the functioning of the market. It should be kept in …

Critical Commentary On The Judgment Of The Provincial Administrative Court (Wsa) In Warsaw Of 27 October 2022, Ref. No. Fi Le: Vl Sa/Wa 2058/22 On The Boundary In Managing Consumer Relations With Tour Operators During The Covid-19 Pandemic, Dominik Borek

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article cites the facts described in the judgment of the Provincial Administrative Court (WSA) in Warsaw of 27 October 2022, ref. no. file: Vl SA/Wa 2058/22. The scrutinized judgment is of great importance for the market of tour operators and insurance companies in Poland, as it concerns setting the limits of liability for actions of entrepreneurs in extraordinary and unavoidable circumstances. In the judgment in question, two values are considered, namely consumer protection, and resolving doubts in favor of entrepreneurs. These two key axioms should be balanced and assessed appropriately in the light of this controversial ruling.

Compensation Liability For Antitrust Damages Caused By Related Companies – Development Of The Concept Of A Single Economic Unit Case Comment To The Cjeu Judgment Of 6 October 2021 In Case C-882/19 Sumal Sl V Mercedes Benz Trucks España Sl, Marta Mackiewicz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The subject of this case comment is the analysis and assessment of the judgment of the Court of Justice of the European Union (CJEU) issued on 6 October 2021 in case C-882/19, brought by Sumal SL v Mercedes Benz Trucks España SL. The Sumal judgment concerns an important issue in the area of competition law, both public and private (private enforcement) – determining the group of entities responsible for infringements of competition law operating within one economic body. Earlier CJEU case law in this regard focused primarily on determining the liability of the parent company within a group of companies. …

The Economics Of Repair: Fixing Planned Obsolescence By Activating The Right To Repair In India, Dunia Zongwe, Mahantesh Gs, Mamatha R

International Journal on Consumer Law and Practice

This paper examines the lack of a Right to Repair (R2R) legislation in India, particularly in the technology sector, and proposes key principles for an optimal Right to Repair Act based on competition economics and consumer choice. In the current scenario, electronic devices are often designed with planned obsolescence, leading to limited lifespans and encouraging a cycle of consumption and disposal, which negatively impacts the economy, society, and the environment. The global R2R campaign aims to balance societal rights and corporate interests by empowering consumers with the right to repair their devices.

Our research is the first to develop core …

Consumer Harms Arising From The Competition Dynamic Of E-Commerce Platforms In Malaysia, Tze Chin Ong Dr, Mei Fei Lee Ms., Norhoneydayati Abdul Manap, Zalina Abdul Halim Dr., Sridevi Thambapillay

International Journal on Consumer Law and Practice

The structure of the digital market of e-commerce platforms is dynamic, with a combination of characteristics such as strong network effects, concentrated multi-sided platforms, extreme economies of scale and scope, low marginal costs, and high data returns. These strong network externalities within the multisided e-commerce market make the competitive environment in e-commerce significantly different from the conventional monogamous market as they create gatekeeper positions favouring a few incumbent e-commerce platforms. In these circumstances, gatekeeper incumbent e-commerce platforms often set commercial conditions that have the effect of undermining other players and potential rivals within the ecosystem. In this regard, there has …

Why Antitrust? Perspectives On Antitrust Career Paths, Cardozo Antitrust Society, New York State Bar Association

2023–2024 Flyers

No abstract provided.

Antitrust And The Corporate Tax, 1909–1928, Reuven S. Avi-Yonah

Book Chapters

In “Antitrust and the Corporate Tax, 1909–1928,” Reuven Avi-Yonah examines a twentieth-century antitrust measure that lay outside the Sherman Act per se—the corporate tax act of 1909. After the enactment of the Clayton Act and the creation of the FTC in 1914, the corporate tax’s antimonopoly reputation faded somewhat. Between 1919 and 1928 most of its antitrust features were eliminated, and they would not be revived during the New Deal. Nevertheless, Avi-Yonah argues that the corporate tax still retains some potential to contribute to limiting the power of monopolies, especially if the progressive corporate tax rate structure adopted in the …

More Than A Decade Of The Slovak Settlement Regime In Antitrust Matters: From European Inspirations To National Inventions, Ondrej Blažo

Yearbook of Antitrust and Regulatory Studies

The settlement procedure in Slovakia stems from three sources of inspiration: top-to-bottom (European Union law), bottom-up (incentive of an undertaking’s lawyer) and horizontal sources (Czechia). After more than ten years of application of this feature of Slovak competition law, there are several cases which were settled. These cases show a certain variety from the point of view of the legal basis, the stage of procedure as well as the character or relevance of the case. This makes it possible to assess their features, practice, effects, and consequences of settlements from the empirical point of view. The present paper analyses the …