Antitrust and Trade Regulation Commons^™

Jerking The Rug Out From Under A Trade Secret Licensee: Is Transfer Of The Patent A Remedy?, Henry H. Perritt Jr.

Michigan Technology Law Review

Predominantly state trade secret law and exclusively federal patent law enjoy a sometimes-uneasy coexistence. Inventions almost always are secret until and unless they are patented; publicizing them for too long will negate the availability of a patent. Misappropriation of trade secrets often is accompanied by application for a patent on the same subject matter. This commonly occurs when an employee gains access to his employer’s trade secrets, quits, and then applies for a patent on them in his own name, maybe after going to work for a competitor of the original employer. It is also conceivable that the owner of …

Anticompetitive Directors, Lane Miles, Mark A. Lemley, Rory Van Loo

Faculty Scholarship

Antitrust scholars have virtually ignored the question of who controls corporations by sitting on their boards of directors. We show that the problem of who sits on boards of directors is considerably greater than previously believed. Drawing on a new dataset spanning both public and private companies across multiple industries, we find evidence that individual board members sit simultaneously on boards of competitors throughout the economy, despite such “interlocking directorates” being illegal under antitrust law. Many of these individuals are senior directors at private equity, venture capital, and other firms investing in the competing firms on whose boards they sit. …

The Last Line Of A Weak Defense: The Waning Force Of The Ncaa's Procompetitive Defense Of Amateurism In § 1 Compensation Challenges, Morgan Small

American University Law Review

The Supreme Court in NCAA v. Alston determined that the NCAA’s education-related compensation restrictions violated § 1 of the Sherman Act. The Court, however, did not scrutinize the legality of the NCAA’s athletic-related compensation restrictions, begging the question: when will the Supreme Court, if ever, stop presuming the validity of the NCAA’s athletic-related compensation restrictions because they allegedly ensure that college athletics remain amateur?

This Comment examines this question in further detail by cataloging the Court’s antitrust jurisprudence involving § 1 compensation challenges and what this jurisprudence may spell for future litigation in a college athletics landscape increasingly defined by …

The Role Of Antitrust In Innovation: Standard Essential Patents, Alexandra Perez

Marquette Intellectual Property & Innovation Law Review

A Standard Essential Patent (SEP) is a patent that is chosen to streamline a chosen industry standard to promote economic growth and consumer satisfaction. Consumers interact with SEPs in almost everything they do in their daily life, from connecting to WIFI to charging any device. This is possible because the patent selection process requires patent owners to license their patents on fair, reasonable, and non-discriminatory terms (FRAND) upon selection.  Yet, without proper regulation, this is easier said than done. Often SEP implementers are left with two options, entering exploitative agreements or rely on litigation to address unchecked anticompetitive behavior. This …

Ip, At, And Aaas: What Intellectual Property Can Teach Antitrust About The War On Amazon Basics, Kristen Osenga

Law Faculty Publications

Amazon is magical. Search the online marketplace for pretty much anything you can imagine—not to mention all the things you never imagined; you will likely find what you were searching for and be able to have it delivered in two days or less. The magic is not just in Amazon’s vast array of innovative consumer products but also in its providing access to goods that are unavailable locally. An extreme example of Amazon’s ability to supply goods that were not locally available may be found in the pandemic lockdowns of 2020, when neighborhood stores were out of toilet paper and …

The Death Of Amateurism: How A Vertical Restructuring Of The Ncaa Could Preserve Its Role As The Governing Body Of Collegiate Athletics, Miles M. Mcdonald

American University Business Law Review

The National Collegiate Athletic Association (NCAA) is struggling to survive as an organizational entity because of near-constant litigation over university and student-athlete rights. As we enter an era of “amateur” sports where student-athletes can earn unrestrained financial compensation for their efforts, the NCAA is struggling to convince stakeholders that it has a worthwhile plan for the everchanging landscape of collegiate athletics. The NCAA retained a purpose as a governing entity when its rules relating to financial inducements and transfer eligibility were enforceable. Now, stakeholders look to separate themselves from the NCAA. To maintain a purpose and survive as the governing …

European Soft Law Instruments For Sustainability Agreements – Presentation Of Procedural Issues, Critical Analysis And Recommendations For The President Of The Occp, Agata Zawłocka-Turno

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

The article focuses on the procedural aspects of soft law tools employed by competition authorities in Europe, in order to help businesses advance sustainable development. In response to global challenges, such as the climate crisis, some authorities have introduced guidelines and informal guidance to enable companies to undertake pro-environmental collaboration, without breaching competition laws. Examples include guidelines from the European Commission, as well as those from the UK, Dutch, and French competition authorities. The article examines how effective these tools are, their impact on legal certainty for businesses, and explores how a similar approach could be implemented by the Polish …

A Structural Approach To The Application Of Section One Of The Sherman Act To Oligopolistic Interdependence, Annmarie Levins

Maine Law Review

A central tenet of American economic thought is that markets in which many producers compete for business are preferable to those in which one or a few sellers dominate. The conventional wisdom underlying this preference is that competitive markets produce more of the goods consumers want at lower prices than do noncompetitive markets. Oligopolies are markets in which there are few sellers. Oligopolistic markets are characterized frequently by higher prices and lower outputs than competitive markets. Many sectors of the American economy are oligopolistic. For example, the American automobile industry is dominated by "the big three," General Motors, Ford, and …

Antitrust Scrutiny Of The Medical Staff Plan, Cynthia Teresa Churchill

Maine Law Review

Advances in medical technology over the past 50 years have made access to a hospital, its medical staff, and the support facilities and equipment it provides essential for many physicians. Until recently it was not difficult for a qualified physician to obtain staff privileges. In recent years, however, an increasing number of hospital governing boards across the United States have begun to design and implement what are known as "medical staff plans." The often-stated purpose of these plans is to alleviate hospital overcrowding and unstructured staff growth by applying an ordered approach to future medical staff growth, taking into account …

Disclosure Of Documents In Private Antitrust Enforcement Litigation, Aleš Galič

Yearbook of Antitrust and Regulatory Studies

Procedural tools aimed at access to information in general, and disclosure of documents in particular, are crucial for the effectiveness of private antitrust enforcement litigation and for facilitating more genuine equality of arms. Currently, profound differences exist among EU Member States’ civil procedure laws concerning disclosure of evidence held by the opponent. The transposition of the litigation disclosure mechanism contained in the Damages Directive will undermine the existing principles of Slovenian civil procedure. However, this is due to the fact that Slovenian law is outdated with regard to evidence disclosure. Not only that, it is also partially based on an …

The “Amateur” Division I Athlete Is Becoming A Thing Of The Past, So Now What?: Addressing The Action Needed To Preserve Amateurism In College Sports, Elizabeth Hendrickson

University of Miami Law Review

College sports are in a state of logistical chaos. How did we get here? Where do we go next? What does the future of college sports look like? The driving force behind much of this uncertainty is the demise of amateurism at the Division I level of competition. The National Collegiate Athletic Association (“NCAA”) has struggled to define what makes a college athlete an “amateur” since its inception. Over time—and under the NCAA’s purported control—the line between amateur and professional athletes has become increasingly blurred. The NCAA’s failure to maintain the amateur model at the Division I level poses a …

The False Choice Between Digital Regulation And Innovation, Anu Bradford

Northwestern University Law Review

This Article challenges the common view that more stringent regulation of the digital economy inevitably compromises innovation and undermines technological progress. This view, vigorously advocated by the tech industry, has shaped the public discourse in the United States, where the country’s thriving tech economy is often associated with a staunch commitment to free markets. U.S. lawmakers have also traditionally embraced this perspective, which explains their hesitancy to regulate the tech industry to date. The European Union has chosen another path, regulating the digital economy with stringent data privacy, antitrust, content moderation, and other digital regulations designed to shape the evolution …

Jurisdictional Competition On Standard-Essential Patents, Wentong Zheng

UF Law Faculty Publications

his Article offers a systematic examination of jurisdictional competition on standard-essential patents (“SEPs”). SEPs are patents essential to technology standards developed by standard-setting organizations (“SSOs”). To reduce potential patent holdup, SSOs generally require SEP holders to commit to licensing SEPs on “fair, reasonable, and nondiscriminatory” (“FRAND”) terms. During the last decade, jurisdictions around the world have been engaged in fierce competition to set the ground rules on FRAND and other requirements for SEP licensing. This Article traces the legal landscape of this jurisdictional competition and examines how three major jurisdictions, the United States, Europe, and China, have developed divergent stances …

Vertical Restraints In An Amazon World, Martin Edwards

Dickinson Law Review (2017-Present)

Vertical restraints are a peculiarity, even among the dizzying array of contracts subject to antitrust scrutiny. While current law treats vertical restraints permissively, antitrust reformers have added this permissive treatment of vertical restraints to their list of proposed reforms. The reformers have softly proposed that courts apply a presumption of illegality standard for vertical restraints— greater scrutiny than the current standard, the rule of reason. This Article argues that doing so is inadvisable.

Producers and their consumers both want the same thing: the best overall product experience for the money. The critical economic functions of vertical restraints are to enable …

The Liv Golf V. Pga Tour Antitrust Case As A Case Study In Federal Civil Procedure, Michael J. Dube

Dickinson Law Review (2017-Present)

This Article uses LIV Golf Inc. v. PGA Tour, Inc., a sophisticated and headline-grabbing antitrust matter, as a means of instantiating federal civil procedure concepts. The first Part of this Article addresses the unsuccessful motion for a temporary restraining order that in many ways shaped how the litigation proceeded. The second Part examines the dance that is discovery through a focus on a drawn-out dispute regarding a single interrogatory. The final Part drills down on a more novel discovery dispute that began the path towards settlement, namely whether the Foreign Sovereign Immunities Act of 1976 and related common-law doctrine …

The 2023 Merger Guidelines: An Assessment, Herbert Hovenkamp, Tim Wu, James Keyte

Faculty Scholarship

The 2023 Merger Guidelines1 are ten months old, but they still need some unpacking. To help our readers think through the issues that the Guidelines raise, Antitrust magazine asked two experienced legal scholars — Professors Tim Wu and Herbert Hovenkamp — to discuss the Guidelines with Antitrust editorial board member James Keyte. This discussion took place on May 28, 2024. The transcript has been edited for length and readability.

An Antitrust Analysis Of The Ncaa Transfer Policy, Michael Carrier, Marc Edelman

Texas A&M Law Review

The National Collegiate Athletic Association (“NCAA”) is no stranger to antitrust law. As a trade association composed of nearly all U.S. colleges offering competitive sports, its rules are regularly challenged under antitrust law. In the past 40 years, the NCAA has faced challenges to rules limiting televised game broadcasts, curtailing assistant coaches’ pay, and restraining players’ compensation, among other issues. Restraints on college athlete transfers also could subject the Association to reasonable legal scrutiny.

Restrictions on the ability to transfer can harm athletes by preventing their immediate eligibility even though transferring could allow them to be closer to family, enroll …

Privacy’S Commodification And The Limits Of Antitrust, Jeffrey L. Vagle

Arkansas Law Review

This Article argues that the buying and selling of personal data forms what Debra Satz calls a “noxious market,” and, thus, any regulation of information privacy should not accept or depend upon its commodification but should stand on its own. This Article proceeds in three parts. Part I first lays out the history and effects of data commodification, arguing that the market created by this commodification is noxious and undesirable. Part II examines the renewal of antitrust’s purpose as a regulatory tool, especially in the context of its use in the regulation of large technology firms. Finally, Part III argues …

Why The Protect Working Musicians Act's Proposed Antitrust Exemption Needs To Be Enacted, Olivia Finlayson

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

Recommendations To Update The Ftc & Doj’S Guidelines For Collaborations Among Competitors, Cynthia Hanawalt, Denise Hearn, Chloe Field

Sabin Center for Climate Change Law

Existing joint agency guidance from the FTC and DOJ, “Antitrust Guidelines for Collaborations Among Competitors” was written in 2000 and is misaligned with the agencies’ focus on market power considerations and protecting the competitive process. This white paper seeks to provide a rationale and suggestions for revising the collaboration guidelines. We look to examples in other jurisdictions, with an eye to their treatment of sustainability-related collaborations, as many were updated with these considerations in mind. Importantly, we do not recommend that updated guidelines follow international examples in creating explicit sustainability-related carve outs, safe harbors, or exemptions. Due to the complex …

Tying Law For The Digital Age, Daniel A. Crane

Notre Dame Law Review

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A conventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …

All For One, One For None: Arrington V. Burger King Worldwide And The Single-Entity Defense For Franchises, Tyler Nappo

Cardozo Law Review

Section 1 of the Sherman Antitrust Act (Sherman § 1) proclaims contracts, combinations, or conspiracies in restraint of trade or commerce to be illegal. Thus, for an agreement to fall within Sherman § 1’s boundaries, there must be a joining together of separate actors or entities. However, for over a century since the Sherman Act’s enactment, courts have struggled to draw the line between separate business entities and single entities. This distinction became more defined with the Supreme Court’s holding in Copperweld Corp. v. Independence Tube Corp. that parent companies are incapable of conspiring with wholly owned subsidiaries. But Copperweld …

Finansowanie Sporów Sądowych Przez Podmiot Trzeci – Perspektywa Polska, Patrycja Okońska

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

Litigation finance is a form of investment provided by external commercial entities in the context of high-value litigation initiated by those who sustained damage, particularly class actions. The global demand for such funding has led to the development of a distinct litigation finance market sector, where procedural parties can gain needed funds to pursue a legal claim from an external investor, who then receives an agreed upon proportion of the recovered damages. The potential of the institution of external litigation finance, but also the increased potential for abuse it brings, has been recognised in the European Union. In Poland, outdated …

Antitrust Law For Blockchain Technology, Seth C. Oranburg

Law Faculty Scholarship

Applying traditional antitrust law to the modern world wide web could break the internet. Lina Khan, the FTC’s current chair, is pushing for enhanced antitrust enforcement to break up Big Tech, seemingly based on the assumption that antitrust law is the right tool for ensuring a free and equitable internet. This assumption may be in error, and this Article seeks to explain why. Antitrust doctrine originally developed from a law enacted 130 years ago to deal with monopolist “robber barons” like Standard Oil. Since 1890, the structure of markets has changed. Today’s information markets through the internet are much different …

Innovation Misunderstood, Maurice E. Stucke, Ariel Ezrachi

Scholarly Works

Innovation is transformative and key to future prosperity. It is therefore of no surprise that antitrust laws seek to promote it. What is surprising, however, is that despite the central role that innovation occupies in competition cases, its actual treatment by the courts is far from nuanced.

In this paper, we reflect on the D.C. Circuit’s 2023 ruling in N.Y. v Meta to illustrate the prevailing monocular vision adopted by the court in its treatment of innovation. That vision, we argue, reflects simplistic assumptions as to innovation dynamics and mistaken beliefs about the digital economy. It is further compounded by …

Antitrust & Ai Supply Chains, Maurice E. Stucke, Ariel Ezrachi

Scholarly Works

Will AI technology disrupt the current Big Tech Barons, foster competition, and ensure future disruptive innovation that improves our well-being? Or might the technology help a few ecosystems become even more powerful?

To explore this issue, our paper outlines the current digital market dynamics that lead to winner-take-most-or-all ecosystems. After examining the emerging AI foundation model supply chain, we consider several potential antitrust risks that may emerge should certain layers of the supply chain become concentrated and firms extend their power across layers. But the anticompetitive harms are not inevitable, as several countervailing factors might lessen or prevent these antitrust …

Antitrust Against The Anti-Hero: Ticketmaster Monopoly Wages Ongoing War On The Concert Industry, Claire J. Neiberg

Duquesne Law Review

Taylor Swift is one of the biggest names in the music industry. Following her rise to fame in 2006, Swift made history as the first female country singer to write an entire U.S. platinum-certified album, and over the next seventeen years, she has curated a discography spanning multiple genres and reaching millions of listeners. When Swift announced ticket sales for her 2023 The Eras Tour, fans were met with an obstacle that concertgoers know all too well: Ticketmaster and its monopolistic practices. Founded in 1976, Ticketmaster is the world's largest ticketing sales and distribution company and the global market leader …

From Rancid To Reasonable: Unfair Methods Of Competition Under State Little Ftc Acts, Samuel Evan Milner

American University Law Review

When Congress gave the Federal Trade Commission the power to identify and enjoin unfair methods of competition, it did not create a parallel private right of action as it had for other antitrust laws. Yet approximately two dozen states have since enacted their own “Little FTC Acts,” under which private plaintiffs may sue for damages and other remedies. These poorly understood state laws are actively shaping American competition policy on a national scale. The Ninth Circuit recently affirmed the nationwide injunction that Epic Games obtained against Apple under California’s law despite concluding that Apple violated no federal or state antitrust …

Neo-Brandeisianism's Democracy Paradox, Thomas A. Lambert, Tate Cooper

Faculty Publications

Neo-Brandeisians, including the current heads of the U.S. antitrust enforcement agencies, have declared contemporary antitrust a failure. Among their chief complaints is that prevailing antitrust doctrine has failed to protect democratic values because it has allowed business enterprises to amass excessive economic power. Such economic power, they assert, breeds undue political power as large firms have the resources to sway policymakers and may thereby thwart majority will. Outside the political realm, NeoBrandeisians say, massive industrial concentration undermines effective self-governance by rendering citizens beholden as consumers, suppliers, and laborers to a small group of powerful firms. To preserve democratic values, defined …

The Antitrust Text, Herbert J. Hovenkamp

Indiana Law Journal

The antitrust laws are fully stated in two statutes that seem absurdly brief in relation to the work they do. Their brevity in relation to coverage has led to three phenomena. First is the tendency of courts to use the statutory text as no more than a starting point, treating it as a general principle, or “Magna Carta,” of free enterprise, and sometimes ignoring the statutory language altogether. Second, courts have responded to the statutory brevity with judicial development of numerous rules not mentioned in the statutory texts. The third phenomenon is a kind of expansionism, or belief that the …